| IMMIGRATION — European Union citizen — Other family members — Right of European Union citizen to move to United Kingdom — Duty to facilitate entry and residence of dependant or member of household of citizen “in country from which they have come”to member state to which citizen had moved — Whether applicable only to other family members who had been dependant or member of household in EEA state from which citizen had moved — Council Regulation (EEC) No 1612/68, art 10(2) — Parliament and Council Directive 2004/38/EC, art 3(2)(a)
KG (Sri Lanka) v Secretary of State for the Home Department; AK (Sri Lanka) v Same [2008] EWCA Civ 13;[2008] WLR (D) 11
CA:Buxton, Sedley and Hooper LJJ: 25 January 2005
The right of a citizen of the European Union and his family members to move and reside freely within the territory of the Member States did not extend to “other family members” (falling within art 3(2)(a) but not art 2(2) of Parliament and Council Directive 2004/38/EC) who had not been the dependants or members of the household of the Union citizens in the European Economic Area state from which the citizen had moved.
The Court of Appeal so stated dismissing the appeal of the applicant, KG of Sri Lanka, from the decision of the Immigration and Asylum Appeal Tribunal dated 16 March 2007 to refuse his application to join the family of his his brother, a German citizen who had moved to the United Kingdom, and refusing the applicant, AK of Sri Lanka, permission to appeal from the Immigration and Asylum Appeal Tribunal which had refused his application to join and remain with his cousin, French a citizen who has moved to the United Kingdom.
BUXTON LJ said that Community law recognised rights of movement on the part of relations not in order to support family values as such, but in order to make real the right of movement of the European Union citizen, who might be deterred from exercising that right if he could not take his relevant family with him. That was the constant theme of the cases that were shown in support of the attempt to assert the doctrine of family reunion. No family members had rights of residence unless the Union citizen exercised his own right to move to or reside in a member state of which he was not a national. Art 3(1) of Parliament and Council Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, provided that family members as defined in art 2(2) obtained the benefit of the Directive if they accompanied or joined such Union citizens. Although not specifically so stated, it was hardly likely that an other family members (“OFMs”), to whom art 3(2)(a) applied, would not be also so required to be accompanying or joining his relevant Union citizen. The tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependants or members of his household in the country from which they had come very strongly suggested that that relationship should have existed in the country from which the Union citizen had come, and thus have existed immediately before the Union citizen was accompanied or joined by the OFM. It seemed wholly unlikely that when art 10(2) of Council Regulation (EEC) No 1612/68, on Freedom of Movement for Workers within the Community, and art 3(2)(a) of Directive 2004/38 introduced the requirement of dependence on and membership of the household of the Union citizen in the country from which the OFM had come, they could have had in mind anything other than dependence on the Union citizen in the country movement from which by the Union citizen was the whole basis of his rights and, thus, of the rights of the OFM. Their claims were based squarely on their Union citizen relative's movement from a member state: in the case of KG from Germany and in the case of AK from France. They could only rely on Directive 2004/38 rather than the Regulations if they could establish dependency or membership of the household of the Union citizen in the country relevant to the Union citizen's own right of establishment in the United Kingdom, which countries were Germany and France respectively. That they could not do.
SEDLEY LJ gave a concurring judgment.
HOOPER LJ agreed.
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