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Case C‑22/21 Minister for Justice and Equality – Facilitating entry and residency for distant members of the family primarily based on emotional dependence – European Regulation Weblog

Blogpost 42/2022


On 15 September 2022, the Court docket of Justice issued an vital judgment on the matter of the residence rights of ‘some other member of the family who’s a member of a family of a Union citizen’ as outlined in Article 3(2)(a) of Directive 2004/38/EC. In its judgment, the Court docket of Justice held {that a} member of the family is a part of a Union citizen’s family if a dependence relation is established, primarily based on shut and private ties, solid inside the similar family. The Court docket primarily defines the idea of ‘emotional dependence’. A seemingly new idea of dependency that’s primarily based on robust emotional ties between two people. The diploma of dependence, thus, goes past cohabitation for pure comfort.

In contrast to the members of the family falling inside the definition of Article 2(2) of the Directive, the beneficiaries of Article 3(2)(a) will not be entitled to an automated proper to entry and residency inside a number Member State. ‘Relations’ as in Article 3(2)(a) of Directive 2004/38, are facilitated entry and residency into a number Member State solely after an in depth examination of their private circumstances. Directive 2004/38, thus, makes a transparent distinction between core members of the family, for instance, kids and spouses, and extra distant ‘different’ members of the family.

In its determination, the Court docket of Justice reaffirms and expands on its earlier judgments, SM and Rahman, on the scope of Article 3(2)(a). Whereas the necessities referring to the character and period of dependence stay on the discretion of the Member States, as beforehand acknowledged in Rahman, the definition of ‘different household members’ is a matter of EU regulation and, thus, requires a uniform interpretation. By permitting different members of the family of the Union citizen to enter and reside within the EU primarily based on emotional dependence, the Court docket brings Article 3(2)(a) additional in step with the case regulation of the European Court docket of Human Rights (ECtHR) on the safety of household life primarily based on a excessive diploma of emotional dependence between members of the family apart from the parent-child relationship.

Info of the case

The Minister for Justice and Equality case issues two Pakistani nationals, SRS and AA, who’re first cousins of each other. SRS acquired British citizenship in 2013, after dwelling within the nation since 1997 together with his household. After receiving a four-year pupil visa within the UK, his first cousin AA moved in with SRS and his household in 2010. SRS and AA each relocated to Eire at first of 2015. AA relocated to Eire with out having a visa to legally reside in both the UK or Eire, as his pupil visa expired in December 2014.

AA filed an utility for a residence allow in Eire asserting each emotional and monetary dependence on his member of the family SRS, with whom he shared a family to say emotional dependence. The Irish authorities rejected the appliance, deeming it inadequate, merely, to reside collectively on the similar tackle. As an alternative, they required proof to indicate that the Union nationwide was ‘the pinnacle of the family’. Moreover, the evaluation of the steadiness of the hyperlinks between the Union nationwide and the third-country nationwide (TCN) can solely take into consideration the interval after Union citizenship has been conferred. The Irish authorities, therefore, claimed that AA didn’t fulfil the circumstances for a residence allow.

Arguing that the Irish authorities interpreted Article 3(2)(a) of Directive 2004/38 too restrictive, SRS and AA appealed the rejection. Each the Court docket of First Occasion and the Court docket of Enchantment dismissed the case, arguing that members of the family who reside with a Union citizen have to be – resulting from an emotional connection – an integral a part of the household unit, and can’t reside collectively merely for comfort.

Having restricted the attraction to the interpretation of ‘different member of the family who’s a member of the family of the Union citizen’, the Supreme Court docket referred the matter to the Court docket of Justice mentioning variations between Directive 2004/38’s language variations. The Supreme Court docket of Eire referred the next questions:

  1. Does the idea ‘member of a family of an EU citizen’ (Article 3(2)(a) of Directive 2004/38) require uniform utility within the EU, and in that case, what’s its definition?
  2. If not, what are the standards to evaluate if an individual is a member of the family of an EU citizen?

In its referral, the Supreme Court docket proposed quite a few components, specifically the size of time spent dwelling with a Union citizen and the explanation for cohabitation, to be able to develop a uniform interpretation. Equally, the probability of a Union citizen being deterred from exercising his freedom of motion have to be thought-about the second his member of the family is unable to accompany him. 


In its judgment, the Court docket of Justice outlined the idea of ‘some other members of the family who’re members of the family of Union citizen having the first proper of residence’ as an individual who has a relationship of dependence with a Union citizen, primarily based on shut and secure private ties, established inside the similar family, which fits past a mere cohabitation for causes of pure comfort. Though Article 3(2) references nationwide laws of the Member States, the Court docket of Justice – and the Fee its observations – acknowledged that this reference doesn’t prolong to the definition of ‘different member of the family’. The idea, thus, requires an unbiased and uniform interpretation inside the European Union to make sure uniform utility.

First, the Court docket claimed that, when learn in gentle of recital 6, the varied language variations, supported by the target of the Directive, require that the connections between the opposite member of the family and the Union citizen sharing the identical family transcend pure comfort (paras. 23-24). The premise for such dependence depends on shut and secure private ties between the opposite member of the family and the Union citizen. The opposite two conditions talked about by Article 3(2)(a), in any case, additionally contain both a bodily or monetary dependence on the Union citizen (para. 23). Though sure language variations might solely recommend cohabitation, earlier case regulation states a uniform interpretation can’t be primarily based solely on one language model and should take the Directive’s general goal under consideration (paras. 20-21). The Court docket, additional, clarified that the textual content of the availability doesn’t name for the criterion implied by the Irish authorities, that the Union citizen have to be the pinnacle of the household (para. 22).

Second, the Court docket reaffirmed its earlier judgments – Rahman and SM – by holding that Article 3(2) merely facilitates entry and residence in a Member State however doesn’t confer an automated proper (para. 25). The Court docket right here nonetheless repeated the significance of Article 3(2), specifically within the upkeep of the household’s unity in a broader sense and in granting candidates sure procedural ensures: a choice can solely be made after an in depth examination of all of the specifics of the applicant’s state of affairs, and a refusal should all the time be justified by causes (paras. 24-25).

The Court docket concluded by highlighting numerous parts that should be taken under consideration in an utility primarily based on this provision. Candidates are required to offer adequate proof referring to the real existence of their dependence relationship inside their family to ascertain that their relationship is just not solely for the aim of gaining entry and residency within the host Member State (para. 26). Opposite to the proposal of the Irish Supreme Court docket, the Court docket of Justice discovered that the power of the connection between the Union citizen and the opposite member of the family is adequate if at the very least one in all them is affected if they can not accompany each other within the host Member State (para. 27-28). The upper diploma of requiring the Union citizen to be prevented from exercising his freedom of motion would equal members of the family in Article 3(2) with these in Article 2. The Court docket additional dominated that extra concerns embody the diploma of kinship and the size of shared home life. The latter, opposite to the interpretation by the Irish authorities, might begin earlier than the acquisition of Union citizenship to correctly assess the steadiness of the connection between the members of the family (para. 29).


The Court docket’s determination in Minister for Justice and Equality is a step in the best path towards defending the household lifetime of Union residents, by recognizing {that a} family may embody members of the family who don’t fall inside the slender scope of Article 2 of Directive 2004/38. Along with monetary and bodily dependence, the Court docket holds that emotional dependence between different members of the family and the Union citizen is equally a floor to facilitate entry and residence within the host Member State.

The Court docket appears to interpret Article 3(2)(a) of Directive 2004/38, even when solely implicitly, additionally in step with the ECtHR’s case regulation on Article 8 of the European Conference on Human Rights (ECHR). The function of the Constitution of Basic Rights within the European Union (Constitution) – and its reflex impact with the ECHR by Article 52(3) of the Constitution – for Article 3(2)(a) purposes was already emphasised in SM (see para. 71). Notably on the idea of emotional dependence and the institution of ‘household life’, the ECtHR has held that Article 8 ECHR protects the emotional dependence of different members of the family below sure circumstances (Butt v. Norway, para. 76).

Arguably, in Minister for Justice and Equality, the Court docket confirms that Article 3(2) of Directive 2004/38 is a relaxation class for all conditions involving ‘household life’ that necessitates entry and residence within the host Member State not coated by Article 2. The Court docket, seemingly, confirms this concept by reaffirming – as beforehand held in Rahman para. 32 – the need to take care of the household unit in a broader sense (additionally referenced in recital 6 of Directive 2004/38) for individuals falling outdoors of the scope of Article 2.

Whereas the Member States can nonetheless set circumstances on the entry and residence of their nationwide laws, the Court docket within the current case affords a set of things that should be thought-about to evaluate the diploma of emotional dependence. Nonetheless, sure feedback and reservations needs to be made on these standards.

As talked about, the Court docket states that candidates are required to offer proof as to their shut and secure ties whereby they show a real stage of emotional dependence between the Union citizen and the opposite member of the family (para. 26). Proving monetary and bodily dependence is rather more easy than establishing emotional dependence. The Court docket, seemingly, in its judgment acknowledges the problem of creating such emotional dependence ties. It, subsequently, offered 4 components to evaluate the existence of emotional dependence.

The primary issue is the diploma of kinship between the member of the family and the Union citizen. Whereas the European Fee’s Communication on the transposition of Directive 2004/38 states that there are not any restrictions on the diploma of kinship specified within the textual content of the Directive (web page 6), the ECtHR has dominated in Slivenko v. Latvia that establishing a adequate diploma of dependence for extra distant kin requires stronger emotional hyperlinks than with nearer members of the family (para. 97). It stays to be seen how the Member States will assess this consider instances with (very) distant members of the family that present a robust emotional dependence on the Union citizen. The distinction between the European Fee’s Communication and the ECtHR ruling on distant members of the family may lead a nationwide court docket to refer one other preliminary query to the Court docket of Justice on the burden ratio of kinship in comparison with the opposite components within the evaluation of emotional dependence. Will it’s in step with the ECtHR, or, will the EU defend distant members of the family with a real emotional dependence on a Union citizen by requiring an equal stage of emotional dependence as extra shut members of the family for facilitation of entry and residency below Article 3(2)(a) of Directive 2004/38?

Consistent with the diploma of kinship, the Court docket of Justice in Minister for Justice and Equality notes that the closeness of the household relationship and the power of their ties play a job within the evaluation of emotional dependence (issue two and three). Though candidates can present proof by any means essential, as confirmed in its determination in Jia, it’s tough to think about how candidates can present proof of their closeness in follow. Belgium, for instance, within the case of Article 3(2)(b) of Directive 2004/38 (companions in a sturdy relationship), requires proof of journey preparations taken collectively and/or pictures of the candidates collectively over a sure interval to be able to show the emotional bond between the individuals in a sturdy relationship. It appears seemingly that (at the very least some) Member States will take an identical method to evaluate emotional dependence between two members of the family.

The final issue, the size of shared home life, appears to be probably the most goal and best suited for demonstrating emotional reliance. A prolonged, secure interval of a shared family might presuppose the closeness and power of household bonds. Candidates could possibly present legally binding documentation, corresponding to, for instance, a rental contract with each names on it or an extract from the municipal registry to substantiate their utility.

In the end, it’s as much as the competent nationwide authorities to look at extensively all offered documentation proving the emotional dependence. It will likely be fascinating to see how Member States will assess emotional dependence and to what extent the diploma of kinship will matter. It’s clear that any necessities that transcend the phrases of Article 3(2)(a), corresponding to mandating that the Union citizen serves as the pinnacle of the family, is opposite to EU regulation. The query stays, nevertheless, if even a really distant relative with whom a Union citizen has an in depth emotional bond, might acquire a proper to entry and residence in a number Member State below Article 3(2)(a)?



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