Eligibility

Eligibility

Introduction

During the past 20 years or so the government has tightened up the restrictions on entitlement to accommodation and support for people from abroad. These restrictions have been introduced gradually and have often been followed by which lead to the initial legislation being changed. This has led to a complex web of legislation and case law.

These provisions do not just effect people from abroad British citizens may fall foul of the Habitual Residence Test so it is not just people from abroad who are effected.

It is very easy with the rules on immigration status and eligibility to get very confused very quickly. To overcome this is it is necessary to keep the issues simple and the threads untangled. The purpose of this Guide is identify and define those issues and to set out the steps which need to be followed to advise and assist someone who is facing exclusion from housing or support due to their immigration status

The best way to do this is to start off with the assumption that anyone who is not a British citizen and who has not been living here for a number of years may be treated as ineligible for assistance.

It is important to remember that council staff are likely to be just as confused as anyone else and so their decisions may well be open to challenge once they are looked at more closely.

I am sure that readers who are familiar with this complicated subject will spot errors. I would very much appreciate it if these could be pointed out by people commenting. I will then try and correct the errors.

For more detailed information about this subject you should visit the Chartered Institute of Housing site Housing Rights Information read Sue Willman and Stephen Knafler’s book Support for Asylum Seekers and Other Migrants

Exclusion from Eligibility for Housing Under Part 7 of the Housing Act 1996

A local authority may not provided assistance under the homelessness provisions under Part 7 of the Housing Act 1996 to persons from abroad who are ineligible.

Eligibility is determined by an applicant’s immigration status. A local authority is entitled to take a decision by the UK Borders Agency at face value and is not required to carry out its own further investigations to determine eligibility.

Section 185(2)  of the Housing Act 1996 provides:
“A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.”

Section 193 (6) (a) provides that after  the main housing duty has been accepted, a local housing authority may revisit the issue of eligibility

Section  185 deals with eligibility in a very general way. The detail is set out in the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI No. 1294 (“the eligibility regulations”).

Regulation 5 deals with applicants who are subject to immigration control.

Regulation 6 deals with applicants who are not subject to immigration control but are still not treated as eligible. These are Act if the applicant  (a)  is not habitually resident, (b)  or European National who is a jobseeker or has an initial right to reside for a period not exceeding three months.

Reliance on Ineligible persons for Homelessness / Priority need

Section 185(4) of the Housing Act 1996 originally required authorities to disregard ineligible household members when deciding whether an eligible applicant was homeless or in priority need.

Section 185(4) formerly required authorities to disregard ineligible household members when deciding whether an eligible applicant was homeless or in priority need. However, in R (Morris) v Westminster CC [2005] EWCA Civ 1184 [2006] HLR 8, concerning a British citizen with a daughter subject to immigration control, the Court of Appeal declared Section 185(4) incompatible with Article 14 of the European Convention on Human Rights when read with Article 8.

The government responded by amending Section 185(4) by operation of the Housing and Regeneration Act 2008Section 314 and Schedule 15. This provided that for all applications made on or after 2 March 2009 the restriction only applies to eligible applications who are subject to immigration control, except for EEA and Swiss nationals. When considering an application from such a applicant, authorities must continue to disregard any dependents or other household members who are ineligible for assistance, for the purposes of deciding whether the applicant is homeless or has a priority need.

The lawfulness of the old Section 185 was considered by the European Court in  Bah v UK 56328/07 [2011] ECHR 1448.  Schedule 15 was described as an “inadequate and grudging approach” to the Morris declaration but the Court expressly stated that they were not ruling on the discriminatory effect of the amendments. They held that it was the immigration status of the child that resulted in his mother’s differential treatment but it was reasonably and objectively justified by the need to allocate, as fairly as possible, the scarce stock of social housing in the UK and the legitimacy in so allocating, of having regard to the immigration status of those who are in need of housing. Accordingly, there was no violation of Article 14, when taken in conjunction with Article 8 of the European Convention on Human Rights.

Applicants who are not subject to immigration control, and all EEA and Swiss nationals are now able to rely on ineligible household members to prove that they are homeless and/or in priority need. This does not give such applicants exactly the same rights as applicants who do not have to rely on such household members. An application pursuant to which the authority would not be satisfied that the applicant was homeless or had a priority need , but for the ‘restricted person’ is called a restricted case. A restricted person is a person who is ineligible and subject to immigration control who either does not have leave to enter or remain in the UK or who has leave subject to a condition of no recourse to public funds.

Section 185(4) as amended still requires authorities to consider the eligibility of household members. It applies to all applications made on or after 2 March 2009 by ineligible applicants who are themselves subject to immigration control.  It does not apply to EEA and Swiss Nationals.

When considering an application from such applicants, authorities must continue to disregard any dependents or other household members who are ineligible, when deciding whether the applicant is homeless or has a priority need.

Applicants who are not subject to immigration control, and all EEA and Swiss nationals, are however now able to rely on ineligible household members to show that they are homeless or in priority need. However, where a full housing duty would be accepted as a result, these cases become “restricted cases” and the applicants do not have exactly the same rights as “normal” applicants.

In a restricted case, the authority must, so far as reasonably practicable, bring the full housing duty to an end by arranging for a private sector offer to be made. This means an offer of an assured shorthold tenancy of at least 12 months made by a private sector landlord to the applicant with the approval of the local authority pursuant to arrangements made by the authority with the landlord.

In a restricted case, the full housing duty ends if the applicant, having been informed of the possible consequences of refusal of the offer and the right to request a review of the suitability of the accommodation, either accepts or refuses a private rented sector offer. Where it is not reasonably practical to bring the full housing duty to an end with a private rented sector offer, the authority may discharge the duty in the same way as any other application.

The Court of Appeal granted permission for a challenge to the lawfulness of the restricted cases regime in Lekpo-Bozua v Hackney LBC [2010] EWCA Civ 90 [2010] HLR 46 but the issue was not pursued in the substantive appeal because the cases did not in fact involve a restricted case.

Immigration Control

The term “a person subject to immigration control” is defined in Section 13(2) of the Asylum and Immigration Act 1996 as:

“a person who under the Immigration Act 1971 requires leave to enter or remain in the UK (whether or not such leave has been given)”

Generally speaking, this means anyone who requires a visa to enter or remain in the UK. It applies mainly to non EEA nationals but in  Abdi & Ismail v. Barnet L.B.C. [2006] EWCA Civ 383 the Court of Appeal  held that  EEA nationals who  are not exercising a right to reside in the UK are subject to immigration control.

Section 7(1) of the Immigration Act 1988 provides that  no leave to remain is required where a person has an enforceable right under EU law.

The position of European Economic Area (EEA) nationals is special. The Immigration Act 1971 does not apply to any person who has the right to reside in the UK either by virtue of Directive 2004/38/EC or the Immigration (European Economic Area) Regulations 2006 SI No. 1003. Therefore, an EEA national with a right to reside in the UK is not a person subject to immigration control.

Under the Immigration Act 1971, Section 2 and Section 3, and the Immigration Act 1988, everyone requires leave except:

(1) British citizens,

(2) certain Commonwealth citizens with the right to abode and

(3) EEA nationals exercising rights to reside.

(Also exempt are: diplomats, UK armed forces and forces visiting at the invitation of the UK government and crew of ships/aircraft due to depart within 7 days).

All other persons require leave and are therefore persons subject to immigration control.

An applicant who is subject to immigration control will only be eligible if he comes within one of the classes prescribed by regulation 5 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI No  1294.

Persons Subject To Immigration Control But Prescribed Eligible

Most persons subject to immigration control are not eligible. However, there are 5 classes of such persons who are expressly made eligible (or “re-included”) by order of the Secretary of State.

The 5 classes of persons who are subject to immigration control but eligible, are set out in the Allocation of Housing and Homelessness  (Eligibility) (England) Regulations  2006 SI No.1294.  Regulation 5 sets out the persons subject to immigration control who are eligible as homeless persons under Part VII of the Act.

Class A – Refugees within the definition in the Refugee Convention article 1 who have leave to enter or remain in the UK, i.e. successful asylum seekers.

Class B – a person who has been granted exceptional leave to enter or remain in the UK outside the provisions of the immigration rules, whose leave is not subject to a condition requiring him to maintain and accommodate himself (and any person  dependent on him) without recourse to public funds.

Exceptional leave to enter or remain in the UK was abolished from 1 April 2003. It used to describe leave granted to asylum seekers who were not found to be refugees but who the Home Office, for humanitarian or compassionate reasons, determined that it would not be right to return to their county of origin. Since discretionary leave is also a form of leave granted outside the immigration rules it may also come within the ambit of Class B

[This may need to be updated now that all decisions are treated as being made within the rules]

Class C – a person who has current leave to enter or remain which is not subject to any limitation or condition and who is habitually resident in the UK, the Channel  Islands, the Isle of Man and the Republic of Ireland other than a person:

(i) who has been given leave to enter or remain upon an undertaking given by another person (his sponsor) to be responsible for his maintenance and accommodation;

(ii) who has been resident in the UK for less than five years beginning on the date of entry or the date on which the undertaking was given in  respect of him, whichever is the later; and

(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive.

Class D -a person who has Humanitarian Protection granted under the Immigration Rules.

Introduced 1 April 2003.  Humanitarian Protection is leave granted to a person who, if removed, would face a serious risk to life or person arising from capital punishment, unlawful killing or torture or inhuman or degrading treatment or punishment in the country of return. While they do not satisfy the criteria laid down in Article 1 (A)2 of the Refugee Convention, they would be at risk of treatment in violation of Article 2 or Article 3 of the ECHR.

Even if a person is able to establish that there is a real risk of a breach of his human rights, he will not be granted Humanitarian Protection if he comes within various exclusion criteria. These include those whose presence in the UK is considered not to be conducive to the public good and/or they are considered a threat to security. Those who would have been granted humanitarian protection but are subject to the exclusion criteria are normally granted a limited period of discretionary leave to remain. Where the risk of treatment in violation of Article 3 arises owing to a medical condition Humanitarian Protection is not given but the person will be considered for Discretionary Leave instead.

Class E – a person who is an asylum-seeker whose claim for asylum is recorded by the Secretary of State as having been made before 3 April 200o within the circumstances mentioned in one of the following paragraphs –

(a) on arrival  (other than on his re-entry) in the United Kingston from a country outside the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland;

(b) within three months from the day on which the Secretary of State made a relevant declaration, and the applicant was in Great Britain on the day on which the declaration was made; or

(c) on or before 4th February 1996 by an applicant who was on that date entitled to benefit under regulation 7A of the Housing Benefit (General)Regulations 1987 (persons from abroad).

For the purposes of Class E, asylum seeker means a person who is at least 18 years old, who is in the UK and who has made a claim for asylum. A claim for asylum means a claim that it would be contrary to the UK’s obligations under the Refugee Convention for the claimant to be removed from, or required to   leave, the UK. A person ceases to be an asylum-seeker when his claim for asylum is recorded by the Secretary of State as having been decided (other than on appeal) or abandoned.

A relevant declaration means a declaration to the effect that the country of which the applicant is a national is subject to such a fundamental change of circumstances that the secretary of state would not normally order the return of a person to that country. The only claims for asylum currently affected are those by Sierra Leone nationals from 16 May to 16 August 1997, and those made by Democratic Republic of Congo nationals between 1 July and 1 October 1997.

The significance of 3 April 2000 is that a person who claimed asylum on arrival in the UK, on or after that date was no longer supported by local authorities but by the National Asylum Support Service (“NASS”). In July 2006 the Home Office announced that NASS no longer existed as a separate department. Asylum support is now administered by two separate routes. Those who made their first asylum claim on or after 5 March 2007 have their support processed under the New Asylum Model (“NAM”) case owner who is processing their asylum claim. Applicants who claimed asylum before 5 March 2007, known as legacy cases, should have their asylum and support claims dealt with by the Casework Resolution Directorate (“CRD).

Applicants who come within Class E are not automatically eligible for assistance. Section 186 of the Housing Act 1996 states that such a person or his dependant is not eligible if he has any accommodation in the UK, however temporary, available for his accommodation.

For the purposes of this section a person becomes an asylum seeker at the time when his claim is recorded by the secretary of state as having been made and ceases to be an asylum seeker when is claim is recorded as having been finally determined or abandoned.

A dependent means a spouse or child under 18 and becomes such when the secretary of state records him as being a dependent of the asylum seeker and ceases to be a dependent wen the claimant ceases to be an asylum seeker, or, if earlier when he is recorded by the secretary of state as ceasing to be a dependent. The section defines a claim for asylum as one made pursuant to the Refugee Convention.

Class F – a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and who has limited leave to enter the UK as a relevant Afghan Citizen under paragraph 276BA1 of the Immigration Rules. This class was introduced by theAllocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2014 SI No 435 regulation 2 with effect from 31 March 2014. It applies to certain Afghan citizens who were locally employed by the UK government in Afghanistan and have since been granted limited leave to remain in the UK

Obtaining Information About Immigration Status

Section 187 of the Housing Act 1996 places a duty on the secretary of state to provide a local authority with such information as they may require to enable them to determine whether a person is eligible for assistance under Part 7 of the Housing Act 1996.

Details of how to obtain this information is set out in Annex 8 of the Homelessness Code of Guidance 

Persons Not Subject to Immigration Control

Persons not subject to immigration control divide into two groups.

Group 1
The first group is those who do not require leave to remain enter or remain in the UK and comprises
(a) British citizens
(b) Commonwealth Citizens with the right of abode
(c) EEA nationals who are exercising Treaty rights

Group 2

The second group is those who are except from the requirement to have leave to enter or remain in the UK. The groups contains three main classes
(a) diplomats and certain staff of embassies and high commissions and their families who form part of their household.
(b) members of the UK armed forces, members of a commonwealth or similar force undergoing training in the UK at the invitation of the government.
(c) members of the crew of a ship or aircraft, hired or under orders to depart as part of that ship’s crew or to depart on the same or another aircraft within seven days of arrival in the UK

European Nationals And The Right To Reside

Introduction / Overview

Initial Right To Reside

The Initial right of residence pursuant to Regulation 13 lasts for no longer than three months from arrival in the UK and is on condition that the EEA national or his family members do not become an unreasonable burden on the social assistance system of the UK. In England a person who has an initial right of reside in ineligible under Part 7 of the Housing Act 1996. This discriminates against applicants with that type of right to reside, but may be justifiable and proportionate such that there is no breach of article 18 of the Treaty of the European Union (“TFEU”)

Extended Right To Reside

There are five ways in which an EEA national may have have an extended right of residence, pursuant to Regulation 14 in the UK. These are as a:

(a) Jobseeker
(b) Worker
(c) Self-employed person
(d) Self-sufficient person
(e) Student

Jobseeker

A jobseeker is a person who enters the UK in order to seek employment and can provide evidence that/ he is seeking employment and has a genuine chance of being engaged: I(EEA) 2006 reg.6(4).

In England jobseekers are ineligible under Part 7 of the Housing Act 1996. This discriminates against applicants with that type of right to reside, but may be justifiable and proportionate such that there is no breach of article 18 of the Treaty of the European Union (“TFEU”)

Worker

A “worker” means a worker within the meaning of EU law. The term has been exhaustively considered by the European Court of Justice.  There are three essential criteria which determine whether a person is a worker:

(i) the person must perform services of some economic value. The activity must be real and genuine, to the exclusion of activity on such a small scale as to be regarded as purely marginal and ancillary;

(ii) the performance of such services must be for and under the direction of another person. Any activity performed outside a relationship of subordination must be classified as an activity pursued in a self employed capacity;

(iii) the person concerned must receive remuneration. Neither the origin of the funds from which the remuneration is paid nor the limited amount of that remuneration can have any consequences with regard to whether or not the person is a worker. This is true even if the worker relies upon welfare benefits to supplement his income; There has been recent confirmation of this principle in Vatsouras and Koupatantze v Arbeitgemeinschaft (ARGE) Nurnberg 900, C-22/08 and C-23/08.

In Elmi v SSWP [2011] EWCA Civ 1403, the appellant was an EEA national who had become involuntarily unemployed and then claimed income support. She ticked the box on the application form stating that she was looking for work. The Court of Appeal held that she had registered with the employment office as a jobseeker, even though she was in receipt of income support and not jobseeker’s allowance, and had thereforeretained her worker status. 

The fact that the employment is of short duration cannot, of itself, exclude the employee from being a worker: see Barry v Southwark LBC [2008] EWCA Civ 440; [2009] HLR 30 (steward at Wimbledon). Even working just ten or twelve hours per week does not necessarily preclude a person from being a worker.

A person who ceases to be employed does not lose “worker” status instantly, I(EEA) 2006 reg.6(2). A person who is no longer working shall not cease to be treated as a worker if:

• he is temporarily unable to work as the result of an illness or accident;

• he is in duly recorded involuntary unemployment after having been employed in the UK, provided that he has registered as a jobseeker with the relevant employment office and he was employed for one year or more before becoming unemployed;

OR

 he has been unemployed for no more than six months;

OR

he can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged

OR

he is involuntarily unemployed and has embarked on vocational training;

OR

he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

In this context, “temporary” means not permanent. In Secretary of State for the Home Department v FB [2010] UKUT 447 (IAC), at [23]-[26], it was held that for the purposes of regulation 6(2)(a), a person whose inability to work as a result of illness or accident is not permanent, is temporarily unable to work.

In Secretary of State for Work and Pensions v JS (IS) [2010] UKUT 131 (AAC), it was held that an EU citizen who was no longer employed or on maternity leave from work and who was pregnant, did not retain her status as a worker and therefore had no right to reside in the UK.

This is to be contrasted with the position of a woman on maternity leave. In Secretary of State for Work and Pensions v Maria Dias [2008] EWCA Civ 807, the Secretary of State agreed that Ms Dias retained her worker status whilst on  maternity leave and the Court of Appeal proceeded on the basis this was correct:  see [18]. To succeed with such cases, the woman should be on a formal period of  maternity leave from her employment, or on statutory maternity pay or maternity allowance if self-employed.

Self Employed Person

A “self-employed person” means a person who establishes himself in another EEA state in order to pursue activity as a self-employed person in accordance with article 43, European Community Treaty (now Article 49 of the TFEU): I(EEA) 2006, reg.4(1)(b). Essentially, this means a person who is working outside a relationship of subordination: see Jany v Staatssecretaris van Justitie, Case C-268/99 at para [34].

A person who is no longer in self-employment shall not cease to be treated as a self-employed person if he is temporarily unable to pursue his activity as a self- employed person as the result of an illness or accident: I(EEA) 2006 reg.6(3).

However, the other categories for retention of worker status applicable to the employed do not apply to the self-employed: see R (Tilianu) v Secretary of State for Work and Pensions [2010] EWCA Civ 1397.

Self Sufficient Person

A self-sufficient person is a person who has pursuant to I(EEA) 2006, reg.4(1)(c): sufficient resources not to become a burden on the social assistance system of the UK during his period of residence; and comprehensive sickness insurance cover in the UK.

A self-sufficient person is most unlikely to be eligible under Part 7 because the need for social housing will mean that he has become a burden on the social assistance system of the UK and therefore cannot have a right to reside on the basis of self-sufficiency.

See also the guidance published by the European Communities on 2 July 2009 on the interpretation of the Directive in respect of insurance requirements. Para 2.3.2 provides that any insurance cover, public or private, contracted in the host Member State or elsewhere, is acceptable in principle, as long as it provides comprehensive coverage and does not create a burden on the public finances of the host Member State.

On 2 July 2009 the Commission of the European Communities published guidance on the interpretation of the Directive. Paragraph 2.3.2 states that any insurance cover, private or public, contracted in the host Member State or elsewhere, is acceptable in principle, as long as it provides comprehensive coverage and does not create a burden on the public finances of the host Member State. This suggests that private health insurance may not be necessary, and raises the possibility that NHS cover is sufficient.      

In Tameside Metropolitan Borough Council [2010] UKUT 243, a Polish national who was receiving an invalidity pension from Sweden was held to have comprehensive sickness cover by virtue of Regulation 1408/71, now Regulation 883/04, because these provisions allowed the UK to claim back the cost of her NHS care from Sweden, however she did not have sufficient resources, taking into account her housing needs and the fact that her stay in the UK was intended to be permanent.

In SSWP v. SW UKUT 508the Upper Tribunal stated that a person could be self sufficient by virtue of being entitled to treatment under the National Health Service by virtue of satisfying the residence and presence conditions under domestic law.

However in Ahmad v Secretary of State for the Home Department [2015] 1 W.L.R. 593the Court of Appeal heldthat the right to a permanent residence card was a privilege which was not conferred unless there was strict and literal compliance with the conditions therein; that, therefore, “comprehensive sickness insurance cover” did not include the public healthcare system of the host state; and that, accordingly, where an EEA national entered the United Kingdom and was not involved in an economically active activity, her residence and that of her family members would not be lawful, if either wished to stay longer than three months, unless she had comprehensive sickness insurance cover while she was economically inactive in the five years following her arrival, and her family members would <not, therefore, qualify for permanent residency in the United Kingdom.

Student

A student is a person who is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is financed from public funds or otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative procedure of the part of the UK in which theestablishment is located, who has comprehensive sickness insurance in the UK, and who assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the UK during his period of residence. 

Permanent Right To Reside

EEA nationals who have resided in the UK for a continuous period of five years obtain the right permanently to reside in the UK  pursuant to  I (EEA) Regulation 15 2006. Family members who are not EEA nationals but have resided with an EEA national for a continuous period of five years also obtain the right.

Workers or self-employed persons who have ceased employment (and their family members) also acquire a permanent right of residence. A person who was a family member of a worker or self-employed person has a permanent right to reside if:

• the worker or self-employed person has died;

• the family member resided with him immediately before his death; and

• the worker or self-employed person had resided continuously in the UK for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease.

The nature of the permanent right to reside has been the subject of several recent decisions of the ECJ. In Secretary of State for Work and Pensions v Taous Lassal & CPAG, C-162/09, it was recognised that the permanent right to reside contained in Article 16 of the Directive did not appear in previous legislation. However, continuous periods of five years’ residence completed before the Directive came into force on 30 April 2006, and in accordance with the earlier legislation, must be taken into account for the purposes of the acquisition of the right of permanent residence under Art.16. Absences fro the host Member State of less than two consecutive years which occurred before 30 April 2006, but after a continous period of five years’ legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Art.16.

The decision was followed by the ECJ decision in Secretary of State for Work and Pensions v Maria Dias, C-325/09 in July 2011. Time spent in the UK by Ms Dias when she had no right to reside but was in possession of a residence permit granted by the national authorities, did not constitute legal residence and therefore could not count towards the five years required for permanent residence under Art. 16 of the Directive. However, it may still be possible to argue that the holder of a valid residence permit is entitled to social assistance: see R (Bidar) v LB of Ealing and Secretary of State for Education and Skills, Case C-209/03 at [37], and Trojani v Centre Public d’Aide Sociale de Bruxelles (CPAS), Case C-456/02 at [43]-[46].

Also relevant is McCarthy v Secretary of State for Home Department, Case C-434/09. Mrs McCarthy held dual British and Irish nationality. She was born and had always lived in England where she married a Jamaican national who lacked leave to remain in the UK. The couple applied for but were refused residence permits as an EU citizen and the spouse of an EU citizen. The ECJ considered that all Union citizens who “move to” or reside in a Member State “other” than that of which they were nationals were beneficiaries of the Directive. However, the Directive could not apply to a Union citizen who enjoyed an unconditional right of residence due to the fact that he resided in the Member State of which he was a national. The residence to which the Directive referred was linked to the exercise of the freedom of movement of persons. The territorial scope of the right of residence and the right of permanent residence referred to the Member State to which a Union citizen “moves” in order to exercise their right of free movement. As Mrs McCarthy had never exercised her right of free movement and had always resided in the Member State of which she was a national, she was not covered by the concept of “beneficiary” for the purposes of Art.3(1) of the Directive. Accordingly, art.3(1) was to be interpreted as  meaning that the Directive was not applicable to a Union citizen who had never exercised his right of free movement, who had always resided in a Member State of which he was a national even if they were also a national of another Member State (see paras 32-43 of judgment).

Family Members

A Family member is defined in the Immigration (EEA) Regulations 2006, reg 7 as:

spouse or civil partner;

  • direct descendants including those of a spouse or civil partner who are:
    under 21;
    or
  • their dependants
  • dependent direct relatives in the ascending line including those of a spouse or civil partner; or
  • “extended family members” who have been issued with an EEA family permit, a registration certificate or a residence card and who satisfy the conditions in Regulation 8.

In PG v VG [2007] UKAIT 19, it was held that “direct” is not confined to the first generation but can include grandchildren, but not nieces, nephews, uncles or aunts. This approach was followed in Bigia & others v Entry Clearnace Officer [2009] EWCA Civ 79, at para [4].

Dependant in this context means that the family member needs the material support of the EEA national or his or her spouse in order to meet their essential  needs in the country of origin: see Jia v Migrationsverket, Case C-1/05. Proof to establish material support may be adduced by any appropriate means and is not confined to financial dependency. In Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358, the Court of Appeal held that the Directive did not specify when the dependency had arisen, nor did it require that the relative had to be  dependent in the country of origin. It was sufficient if the dependency arose in the host Member State.

In Metock & others v Minister for Justice, Equality and Law reform, Case Claimant- 127/08, the ECJ decided that the national law of Ireland was inconsistent with the Directive on the free movement of Union citizens insofar as it only permitted nationals of non-Member States to join family members in Ireland if those nationals had previously been resident in another Member State. Nothing in the Directive made its application conditional upon the applicant family member of a Union citizen having previously resided in a Member State. The definition of family    member was not distinguished according to whether or not they had already lawfully resided in another Member State. It followed that the Directive had to be interpreted as applying to all nationals of non-Member States who were family members of a Union citizen, irrespective of where they had resided prior to their arrival. The Directive conferred upon such family members the right to join the Union citizen in the host Member State whether he had become established there before or after founding a family; either way a refusal by the host Member State to grant them a right of residence was equally liable to discourage that Union citizenfrom exercising his or her rights of residence. Limiting the application of the Directive solely to the family members of a Union citizen who “accompanied” or “joined” him was equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resided.

On 2 June 2011 the Immigration (EEA) (Amendemt) Regulations 2011, SI No. 1247, amended the Immigration (EEA) Regulations 2006 to reflect the Metock decision.

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