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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