Court of Appeal victory in 'Pedro': mums in the ascendancy

Issue 211 (February 2010)

Graham Tegg reports on a CPAG test case.

Introduction

In the ongoing saga of the 'right to reside test' for means-tested benefits, the position of dependent family members may have grabbed most of the headlines. Nevertheless, for many European Union nationals the question whether and in what circumstances their mothers, fathers, grandmothers, grandfathers or adult children count as dependent family members has been a pressing one. This is because a dependent family member of an EEA national who has a right to reside in the UK will also have a right to reside, and thereby access to means tested benefits in their own right.

By a unanimous judgment, the Court of Appeal in Pedro v Secretary of State for Work and Pensions [2009] EWCA 1358 has brought some much needed clarity to the issue. Under the terms of the Citizenship Directive (Directive 2004/38 EC) the Court of Appeal confirmed that the test of dependency was a factual one. More importantly the court held that under the Directive the dependency did not have to arisen in the country of origin before the EU national moved to join her family. The dependency, as in Mrs Pedro's case could arise in the host state.

Facts and background

The facts of Pedro would seem to be fairly typical of this type of case and are as follows. Mrs Pedro is a Portuguese national. At least two of her adult children had exercised their free-movement rights and had moved to live and work in the UK. Mrs Pedro moved to the UK in 2004 to join her son and his family and has lived with him ever since. The son has worked in the UK and during periods when not working, retained his 'worker' status as a jobseeker. Prior to Mrs Pedro moving to the UK there was no evidence that whilst living in Portugal she was either dependent on or supported by her son. Mrs Pedro sought work in the UK and as such had a right to reside as a workseeker. She claimed and was awarded income-based jobseekers allowance. On 9th January 2007 Mrs Pedro reached her 60th birthday and so became ineligible for jobseekers allowance. She then claimed State Pension Credit. Mrs Pedro was found not to have a right to reside in the UK and so therefore did not fulfill the definition of being 'in Great Britain' for the purposes of the State Pension Credit Regulations 2002. Mrs Pedro appealed and was successful; the Appeal Tribunal finding that she was a dependent family member of an EU national (her son) who had retained his 'worker' status.

The Secretary of State appealed and the appeal was successful per the decision of Deputy Commissioner Ramsay in CPC/1433/2008. The main basis of the Secretary of State's appeal was that it was a requirement of EU law that the person claiming to fall within the definition of dependent family member must demonstrate that the dependency existed in the country of origin. In other words, a EU national such as Mrs Pedro who was not dependent on her son before moving to join him in the UK, could not simply by the act of giving up her home and life in Portugal, claim to become dependent upon him in the UK.

In CPC/1433/2008, the Deputy Commissioner not only agreed with the Secretary of State's argument but also concluded as a matter of construction of the Directive and the State Pension Credit Regulations 2002 that in any case a dependent adult could not be a family member. Mrs Pedro appealed on the basis that the Deputy Commissioner had simply misconstrued and confused the numbering of the sub paragraphs of the State Pension Credit Regulations and that under the terms of the Directive there was no requirement for family members to have been dependent in the country of origin.

The relevant EU legislation: Directive 2004/38EC

As with all EU law, the recitals to Directives are relevant to the interpretation of the substantive provisions. In Pedro, the relevant recitals were 3, 5 and 6 of the Preamble:

'3. Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons…in order to simplify and strengthen the right of free movement and residence of all Union citizens . . .

5. The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of "family member" should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

6. In order to maintain the unity of the family in a broader sense . . . the situation of those persons who are not included in the definition of family members . . . 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, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.'

It is immediately evident that a distinction is being made between what might be termed immediate family members who will have full residence rights and family members in the broader sense who will not automatically have such rights but whose circumstances must be considered by the host Member State.

This distinction is maintained in the substantive Articles of the Directive. Article 2 of the Directive provides the definition of family members:

For the purposes of this Directive:

1. "Union citizen" means any person having the nationality of a Member State;

2. "Family member" means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership . . .

(c) the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

3. "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence."

Article 2 must be read in conjunction with Article 3 which provides:

'1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependents or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family members by the Union citizen;

(b) . . . The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The Court of Appeal's judgment

The Court of Appeal, like the Secretary of State, agreed that the Deputy Commissioner mistakenly understood that the reference in regulation 2(4)(d) of the State Pension Credit Regulations 2002 to a family member "of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2" was a reference to Article 2(2)(a), (b) or (c) of the Citizens Directive. It is in fact a reference is to regulation 2(4)(a), (b) or (c) of the State Pension Regulations themselves. Dependent direct relatives in the ascending line are not excluded.

Consequently, as a matter of law, whether or not a claimant is "not to be treated as not in Great Britain" under regulation 2(4) depended on whether she fell within the definition of family member under Article 2 of Directive 2004/38.

On the Article 2(2)(d) point, the Secretary of State's argument almost entirely relied on the ECJ's judgment in Jia v Migationsverket C-1/05 [2007] QB 545 (Jia). In Jia, at paragraph 37 of the judgment, the court found that:

'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 applied to join the community national . . . ' (emphasis added)

Jia was decided under the now-repealed Directives 68/360 and 73/148. The Secretary of State maintained that their repeal was not of relevance as the ECJ had made a ruling of general application that applied equally to the definition of dependent family members in Directive 2004/38. In support of this contention the Secretary of State pointed to recent guidance from the Commission to the European Parliament. On 2 July 2009, the Commission issued Guidance for better transposition and application of Direction 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, part of whose purpose was said to be to 'provide guidance to Member States on how to apply the Directive'. In respect of dependent family members, it states:

'In order to determine whether family members are dependent, it must be assessed in the individual case whether having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen (i.e. not in the host Member State where the EU citizen resides).'

The Court of Appeal rejected the Secretary of State's argument that the Jia definition of dependency applied to the definition of family member under Article 2(2) of the Directive for the reasons set out below. However in some respects the manner and the reasoning by which the court reached its conclusion is as important as the decision itself.

The judgment in Pedro places great reliance on the ECJ's judgment in Metock and Others v Minister for Justice, Equality and Law Reform [2009] QB 318, a case decided under Directive 2004/38.

In Metock, the ECJ used the recitals to the Directive to support the proposition that the Directive was not simply a consolidating measure or a tidying up exercise, but was intended to 'strengthen the right of free movement', and that consequently the rights it provided should not be applied restrictively. The Court of Appeal following closely the reasoning in Metock concludes at paragraph 59 of the judgment that, 'if a particular interpretation of the Directive would mean that a national of a Member State might realistically be discouraged from leaving that state and going to another Member State to work or if, when working or having worked, in another Member State, he might be encouraged to leave, that would not be consistent with the purpose of the Directive, or give effect to it . . . It seems . . . there is substance in [the] submission that the Secretary of State's interpretation of Articles 2(1) and 3(1) could realistically result in a person deciding not to move to another Member State to work or, having moved, to be encouraged to return to his state of origin. A Union citizen who wishes to work in another Member state may be deterred from doing so if he knows that his elderly, but not then dependent mother, will not be regarded as his dependent for the purposes of Article 2(2) if she joins him and later becomes dependent upon him. If, in spite of that, he has left his state of origin, he may then be encouraged to leave his host state for his state of origin to enable his then dependent mother to be supported.'

The court then feels able to distinguish the case from Jia. In short, the Court of Appeal takes a purposive approach to the Directive. The court finds that the ECJ reached its view that the need for support had to exist in the state of origin, because of the particular wording of Article 4(3)(d) of Directive 68/360. No such restrictive wording existed in Directive 2004/38 in respect of Article 2(2) dependent family members. This being in stark contrast to wider family members not falling within Article 2 who under Article 3(2)(a) of the Directive are required to show dependency 'in the country from which they have come.'

The conclusion of the judgment is that as Article 2(2) does not specify when the dependency has to have arisen there is no warrant to read into it the restriction that the family member must have been dependent in the country of origin. This interpretation accords, as the court says, with the 'policy of the Directive to strengthen and simplify the realisation of realistic free movement rights of Union citizens compatibly with their family rights'.

As a result of Pedro, the position of dependent relatives in the ascending line (and presumably for dependent relatives in the descending line as the wording in the Directive is the same) is that they simply have to show dependency as a matter of fact. The ECJ case law the status of dependent family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national or the spouse who has exercised free movement rights. The status of dependence does not presuppose the existence of a right of maintenance and the status is not lost if the family member claims and receives benefit.

The Secretary of State's application to the Court of Appeal for permission to appeal to the Supreme Court has been refused. At the time of writing, it is not known whether or not the Secretary of State will seek permission directly from the Supreme Court.

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