Post
by Ikonkar » Tue Jan 27, 2015 4:34 pm
sorry guys it's not letting me attach it. I've copied and pasted it below -
Firstly, in Pedro judgement, the Court did not apply Jia test not because the applicant was EU national, but because Jia was based on article 4(3)(e) of Directive 68/360:
Pedro: “63.
When in Jia [37] the court referred (as relevant to the present case) to the need for material support having to exist in the state of origin, it did so on the basis of what was said in article 4(3)(e) of Directive 68/360. It said as much in paragraph 38. I do not accept Mr. Blundell's submission to the contrary. What was said in that Article may be contrasted with what is said in Article 8(5)(d) of the Citizens' Directive. That says nothing to suggest that documentary evidence of an Article 2(2)(d) dependency need emanate from the state of origin. That is in specific contrast to "other family member cases," where under Article 8(5)(e) the relevant authority of the country of origin is referred to. The basis of the decision in Jia, insofar as it concerns family members, therefore falls away in a case involving the Citizens' Directive.”
Article 8(5)(d) of the Citizens' Directive is exactly the same as Article 10(2)(d) concerning “family members” that are not nationals of a Member State. In contrast, Article 8(5)(e) and equally Article 10(2)(e) clearly state that there should be a document of dependency from the country of origin for “other family members”. As the Court in Pedro stated, that cannot be an accident of drafting. Considering, that Article 8(5)(d) and Article 10(2)(d) are literally the same, I came to the conclusion that Pedro judgement can be applied to our Solvit case by analogy.
Directive 68/360:
Article 4
3. For the issue of a Residence Permit for a National of a MemberState of the EEC, Member States may require only the production of the following documents;
— by the members of the worker’s family:
(c) the document with which they entered the territory;
(d) a document issued by the competent authority of the State of origin or the State whence they came, proving their relationship;
(e) in the cases referred to in Article 10 (1) and (2) of Regulation (EEC) No 1612/68, a document issued by the competent authority of the State of origin or the State whence they came, testifying that they are dependent on the worker or that they live under his roof in such country.
Secondly, even if UKBA decides not to refer to Pedro judgement, but to apply Jia test, in my opinion, they should reconsider the circumstances.
In Jia case, the ECJ stated that:
“37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.”
In our Solvit case, parents-in-law came to UK after they couldn’t support themselves in India (father retired, they didn’t have any other income or property). This was the reason why their came to UK in the first place. The need for material support existed in the state of origin, that’s why they came to live with their family. The problem might be the time they applied for residence permits. It was in UK, not in the state of origin, but at the time they applied for residence cards, they were dependent on the EEA national (see bank statements). If they had waited for some time in India and during that time had received money from family in UK, they would have been considered dependent in the state of origin. But they didn’t wait and came to UK by Visit-Visa. However, that doesn’t change a fact that they cannot support themselves. UKBA formally considers them as “not dependent” on the EEA national, though factual situation is completely different. In my opinion, such circumstances encourage the EEA national to leave her host state and that is not consistent with the purpose of the Directive.
GOD BLESS
Ikonkar
