| EUROPEAN COMMUNITY — Freedom of movement — Rights of entry and residence — Residence application by non-EC relative of entitled person — Condition of dependence on entitled person — Meaning of “dependence” — Council Directive 73/148/EEC, art 1(1)(d)
Jia v Migrationsverket (Case C-1/05)
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Kūris, Juhász, Cunha Rodrigues, Schiemann, Lõhmus, Levits and Ó Caoimh: 9 January 2007
The condition for the right of residence in the EC of the relative of an EC national established in a member state other than his own or the spouse of such person, that the relative be “dependent”, meant that the relative had to need material support in order to meet his essential needs in his state of origin.
The Grand Chamber of the Court of Justice of the European Communities so held inter alia on a reference for a preliminary ruling by the Utlänningsnämnden (Immigration Appeals Body), Sweden.
The applicant, a retired Chinese national whose son, also a Chinese national, resided in Sweden with his wife, a German national who was self employed in Sweden, applied for a residence permit in Sweden after she had lawfully entered Sweden on a visitor’s visa, but was refused on the ground that there was insufficient proof of the applicant’s financial dependence on her son and daughter-in-law. In proceedings following the refusal, the European Court was asked for a preliminary ruling on (i) whether, in the light of Secretary of State for the Home Department v Akrich (Case C-109/01) [2004] QB 756, the grant of a residence permit to a non-EC national who was a family member of an EC national who had exercised the right of free movement was conditional on the family member having previously been lawfully resident in another member state, and (ii) the meaning of “dependent” in art 1(1)(d) of Directive 73/148/EEC on movement and residence within the Community of EC nationals with regard to establishment and the provision of services.
Art 1 of Directive 73/148 provides: “The member states shall … abolish restrictions on the movement and residence of: (a) nationals of a member state who are established … in another member state in order to pursue activities as self-employed persons … (d) the relatives … of such nationals and of the spouse of such nationals, which relatives are dependent on them…”
THE COURT said, in relation to (i), that the grant referred to was not subject to the condition suggested. Unlike in Akrich, there was no question in the present case of prior unlawful residence in the member state, so that that decision could not be transposed to the present case. As to (ii), the relative of the spouse of an EC national was “dependent” on the latter if he was not in a position to support himself and had a need for material support in his state of origin existing when he applied to join the EC national. The host member state could require proof that the applicant came within one of the classes of persons referred to in art 1 of the Directive. While a document from the relative’s state of origin attesting to his situation of dependence was not indispensable for the issue of a residence permit (though it would be appropriate), a mere undertaking by the EC national or his spouse to support the relative did not suffice to establish the existence of real dependence.
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