adlexy wrote:A quick one for everyone with deep knowledge of the EU Directive 2004/38/EC.
1. How do you define a non financially dependent family member in the EU directive?
2. Is a non financially dependent non EEA family member considered a "family member" for the purpose of visa applications under the EU directive?
3. If a non financially dependent family member applies for a visa, will the family member not be considered an EU "family member" because they are non financially dependent?
4. How do you prove that a non financially dependent family member is a "family member"
Thanks folks
These are questions still to be answered by the CJEU
There are two kinds of families. THe first group is that contained at Article 2 of the Directive.
These include spouse and children (dependents in the descending order) and normally parents (dependent relatives in the ascending order)
Two categories of family this family groups are automatic. They are Children and the Spouse. The parents are not automatic. They need to be dependent. In my view, this need only be shown when they come into the country. I will explain this in a second, because I am aware that the Department might be playing up on this one
The second family group can be found at Article 3.2 . This includes uncles, nieces, cousins etc. Members of the extended family. They need to prove dependence in the country and dependence prior to coming to say Ireland.
Returning to Article 2 family and especially the groups who are dependent relatives of the ascending family. Remember I said all that should need to be shown is dependence while in the residing country, and not evidence prior to arrival, like Article 3.2. Read Article 2. It seems, literally (and the Member States demand this type of interpretation) there is not requirement for prior dependency, unlike Article 3.2.
However, the English believed there was, but the British Court (remember its CJEU who calls the shots) said no and I think they are correct. However , I believe that the Irish might ignore this. They will try and argue that the 2007 CJEU case of Jia demands that dependancy in Country of origin is also required. But Metock, I believe was more than just spouse, but anyone in Article 2, thus no need for prior dependency.
Here are the relevant cases on family reunification that I am referring to. THe British case, be careful because CJEU have said nothing on this yet.
Jia
http://www.unhcr.org/refworld/country,, ... 7f2,0.html
Pedro (English Case)
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean
Further Sources on the Family.
Read this
http://eumovement.wordpress.com/2008/04 ... ly-member/
http://eumovement.wordpress.com/2008/04 ... ficiaries/
http://eumovement.wordpress.com/2011/05 ... y-members/
http://eur-lex.europa.eu/LexUriServ/Lex ... 01:EN:HTML
http://eur-lex.europa.eu/LexUriServ/Lex ... 010:EN:PDF
Q1. To directly answer your question, "what does dependency" mean ? another British case, its seems that the Brits are the only ones who have attempted to discuss it.
+
A person is only dependent who actually receives support from another.
+ There need be no right to that support and it is irrelevant that there are alternative sources of support available.
+ That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life.
http://www.osscsc.gov.uk/aspx/view.aspx?id=2426
Q 2. Depends on who the family member is. Spouse and/or child (automatic, no need for dependency). Or parents (need for dependency, but I believe only while in the new country). Or Other family members as per Article 3.2 (Possible Problems as evidence of dependency while they were at home is needed)
Q3. Are the family members old and ill? , and heavily relying on people to care for them? What is the family member's circumstances. It may not be simply financial dependency.
Q4. It will be easy to show family link, but the question is, can you show they are dependent on Eu family member.
You might need to give a factual scenario.
Bottom line, Europe has to consider these cases under Directive 2004/38 EC . This has not been done. It could go anyway. If the EU has some finance it may help. Is the EU citizen living in their own country of citizenship (forget it , the Directive may not apply in the first place) or is the EU citizen living in another EU state and complying with Article 7 of the Directive? What age is the EU Citizen?
