Bigia & Ors v Entry Clearance Officer

Factual and Procedural Background

This opinion concerns appeals relating to the application and interpretation of Directive 2004/38/EC ("the Citizens' Directive"), which governs the rights of Union citizens and their family members to move and reside freely within the territory of Member States. The Directive distinguishes between "family members" under Article 2.2 and "other family members" ("OFMs") under Article 3.2(a), with differing rights and protections.

The United Kingdom implemented the Directive through the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"), which set out conditions for issuing EEA family permits and residence cards to family members and OFMs. Several appellants, all non-Union citizens from countries such as India and Sri Lanka, sought EEA family permits or residence cards based on their relationships with Union citizens residing in the UK. These relationships include direct descendants, adult children, nephews, nieces, and grandchildren with varying degrees of dependency and household membership.

The appeals arise from refusals of EEA family permits or residence cards, with disputes focusing on the interpretation of dependency and household membership requirements under the Directive and the 2006 Regulations, particularly in light of the European Court of Justice's (ECJ) judgment in Metock v Minister of Justice, Equality and Law Reform and the Court of Appeal's earlier decision in KG and AK v Secretary of State for the Home Department.

Legal Issues Presented

1. Whether the requirement that family members or OFMs must have been lawfully resident in another Member State prior to joining the Union citizen is consistent with Directive 2004/38/EC.
2. How to interpret the dependency and household membership requirements for OFMs under Article 3.2(a) of the Directive, particularly the meaning of "in the country from which they have come".
3. Whether the ECJ judgment in Metock alters or overrules the Court of Appeal's interpretation in KG and AK, especially regarding OFMs.
4. The application of the Directive and the 2006 Regulations to specific appellant cases involving adult children, minor grandchildren, nephews, nieces, and other extended family members.

Arguments of the Parties

Appellants' Arguments

• The appellants relying on Metock argue that the Directive does not require prior lawful residence in another Member State for family members or OFMs to benefit from rights of entry and residence.
• They contend that minor grandchildren qualify as Article 2.2 family members and thus have a direct right to entry and residence without additional residence requirements.
• Adult children claim to be dependants under Article 2.2(c) and assert that dependency should be assessed according to the test in Yungying Jia v Migrationsverket.
• OFMs, such as nephews and nieces, argue that the reasoning in Metock should extend to them, removing the requirement for prior lawful residence in another Member State.

Secretary of State's Arguments

• The Secretary of State concedes that minor grandchildren, as Article 2.2 family members, are entitled to entry and residence rights irrespective of prior lawful residence.
• For adult children, the Secretary of State maintains that dependency must be properly established according to the Jia test and that absence of EEA residence remains relevant.
• The Secretary of State argues that Metock does not affect the position of OFMs and that the Court of Appeal's interpretation in KG and AK remains binding, requiring OFMs to demonstrate dependency or household membership in the same EEA state as the Union citizen.
• In relation to procedural matters, the Secretary of State contends that late applications for reconsideration must be refused on jurisdictional grounds.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the scope and purpose of Directive 2004/38/EC, emphasizing its aim to facilitate the free movement and residence rights of Union citizens and their family members. It distinguished between Article 2.2 "family members" who enjoy full rights and Article 3.2 "other family members" (OFMs) who have more limited protections.

The Court examined the implementation of the Directive in UK law via the 2006 Regulations, noting inconsistencies with the Directive, particularly the requirement for prior lawful residence in another Member State for both family members and OFMs.

The Court reviewed the relationships underpinning the appeals, categorizing appellants as minor grandchildren (Article 2.2 family members), adult children (potentially dependants under Article 2.2(c)), and OFMs such as nephews and nieces.

It analyzed the Court of Appeal's decision in KG and AK, which had interpreted dependency and household membership requirements strictly, requiring these conditions to exist in the same Member State as the Union citizen's residence immediately prior to movement. The Court acknowledged that KG and AK was binding unless inconsistent with subsequent ECJ authority.

The Court then considered the ECJ's judgment in Metock, which held that prior lawful residence in another Member State is not a precondition for family members' rights under Article 2.2. The Court accepted that Metock effectively overruled contrary aspects of KG and AK and related case law, extending this principle to OFMs concerning the prior residence requirement.

However, the Court distinguished that Metock did not address the other substantive conditions for OFMs under Article 3.2(a), including the necessity of dependency or household membership "in the country from which they have come". The Court upheld the reasoning in KG and AK that these conditions must be met contemporaneously and in the same country as the Union citizen's residence immediately prior to movement, as these conditions serve to protect the Union citizen's primary rights and prevent deterrence from exercising free movement.

Applying these principles to the appellants, the Court found that minor grandchildren, as Article 2.2 family members, have rights unaffected by prior residence requirements and allowed their appeals. For adult children, the Court applied the dependency test from Jia and found sufficient evidence of dependency in one appellant's case, allowing the appeal without remittal. In contrast, adult children who did not satisfy dependency or household membership requirements, or whose procedural applications were late, had their appeals dismissed.

For OFMs, such as nephews and nieces, the Court found no error in the refusal of their appeals due to failure to establish dependency or household membership in the relevant Member State contemporaneously with the Union citizen's movement. The Court rejected alternative arguments based on the Immigration Rules or the European Convention on Human Rights.

Holding and Implications

The Court allowed the appeals of the minor grandchildren and the adult daughter who demonstrated dependency under the Directive and dismissed the appeals of the other adult appellants, including OFMs who failed to meet the dependency or household membership requirements.

The decision clarifies that the ECJ's judgment in Metock removes the requirement for prior lawful residence in another Member State for family members and OFMs but does not affect the substantive dependency and household membership conditions for OFMs under Article 3.2(a). It confirms that these conditions must exist in the same country as the Union citizen's residence immediately before movement to the host Member State.

This ruling reinforces the distinction between Article 2.2 family members, who enjoy full rights, and OFMs, who have more limited protections. It emphasizes that the Directive's purpose is to protect the Union citizen's rights to free movement without being deterred by immigration rules affecting their family life, rather than to provide a broad family reunification policy for extended relatives.

No new precedent was established beyond clarifying the application of existing case law in light of Metock. The Court declined to refer any matter to the ECJ, indicating confidence in the clarity of Community law on these issues.