Immigration: Concept of dependant family member under EU law

A welcome judgment from the CJEU on the concept of "Dependant Family Member" is given some consideration here.

The scenario could be this:

You are originally from Nigeria but have, through living in Spain, for example, established Spanish nationality. You then move to the UK, and work in the UK. This process has taken a long time, and your children, who were young when you originally left Nigeria, are aged 21 or over. Can your children join you in the UK?

Directive 2004/38 says that those direct descendants under the age of 21 or who are dependants can join you in the UK. This Directive has been interpreted by the UK in the Immigration (EEA) Regulations 2006/1003, which pretty much reflect the Directive's provision in this respect.

But what is meant by dependency? This is the question that the CJEU considered in the case of Reyes v Migrationsverket C-423/12.

This case concerned a Filipino citizen, who had acquired German citizenship, and moved to Sweden, thus engaging rights under European law. Ms Reyes' daughter was over the age of 21, and living in the Philippines. She had never held a job, nor had she applied for Social Security from the Philippine authorities. She was supported by her Filipino/German mother. The Swedish authorities sought to argue that in order to establish dependency, Ms Reyes' daughter would have to show that she had tried without success to find employment in the Philippines, or had tried to obtain subsistence support from the authorities in the Philippines, or had otherwise tried to support herself. This approach was rejected by the CJEU. The court held that the fact that Ms Reyes had regularly, and for a significant period, paid money to her daughter in the Philippines, in order that she could support herself there, was sufficient to show that her daughter was dependant upon her mother. The court further held that the daughter was not required to establish that she had unsuccessfully tried to find work or obtain subsistence support from the authorities in her country of origin, and/or otherwise tried to support herself. The court rejected the approach of the Swedish immigration authorities.

This case may be of interest to those families who are separated, and whose children are aged 21 or over, but who are still dependant on their European national parents.

Drummond Miller would be happy to advise on issues arising from European law, and please do get in contact with one of our team.