upcoming ECJ case C-83/11 on “Other family members”

Directive 2004/38/EC has a section (“Article 3 – Beneficiaries”) on other family members who are “beneficiaries”.  Beneficiaries are more distant family members who do not have semi-automatic rights that can be proven with a birth or marriage certificate.

This part of the Directive is vaguely written, probably intentionally so.  It uses slippery phrases like “should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons”.

Article 3 does not proscribe handling of these cases, or say exactly what kind of animal they are.    Even basic questions are left open: For example, is a visa to be issued (as with primary family members) “for free, as soon as possible and on the basis of an accelerated process”, or (as with national law) “for a large fee, if possible, and maybe at some point”?

So now the ECJ has been asked to clarify:

1. Is a member state required to handle all these types of “beneficiary” in national law?
2. [unclear question about “direct applicability” of Article 3(2) when the applicant “cannot comply [?] with any requirements imposed by national legislative provisions”]
3. Do other family members have to have lived with (both) the EU national and their spouse?
4. Must the dependency in 3(2) have existed shortly prior to the EU citizen moving to the host member state?
5. Can a Member State impose particular requirements as to the nature or duration of dependency?
6. For how long must the dependency continue while living in the host member state, and how must it be proven?

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Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 22 February 2011 — Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

ECJ Case C-83/11

Questions referred:

1. Does Article 3(2) of Directive 2004/38/EC ( 1 ) require a Member State to make legislative provision to facilitate entry to and or residence in a Member state to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?
2. Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?
3. Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?
4. Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?
5. Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?
6. Must the dependency on which the other family member relies in order to be admitted to the Member state continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?

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