Berkeley Solicitors is acting for a number of applicants who currently have Judicial Review proceedings pending in the High Court challenging decisions of the Minister for Justice and Equality to refuse residence cards pursuant to to Directive 2004/38EC and the European Communities (Free Movement of Persons) Regulations 2015.

The cases addressing the issue of dependency under EU free movement law have been placed in a holding list, following the case of Khan v. Minister for Justice, (Unreported, High Court, Faherty J., 27 October 2017). The Khan case is currently under appeal to the Court of Appeal.

In Khan v. Minister for Justice, the High court granted an order of certiorari of a decision refusing residence cards to the parents of an adult EU citizen as qualifying family members, subject to establishing dependency.

The High Court held that the Minister had applied the wrong test that ‘it was impossible to live at a subsistence level’.

The meaning of dependency in EU free movement law is a well established principle.

In  Case  C-1/05 Jia v. Migrationsverket the Court of Justice defined dependency for the purposes of Directive 2004/38/EC as “the need for material support” to meet “essential needs”.

In Jia, there is no reference to it being a requirement of dependency that it was impossible to live at a “subsistence” level if financial support from the EU citizen or his or her spouse was not maintained. The Jia test does not require that the family members have to be totally dependent on the EU citizen.

In the Khan case, the High Court relied on the following paragraph of the CJEU in Reyes:

“In order to determine the existence of such dependence, the host member state must assess whether, having regard to his financial and social conditions, [the family member] is not in a position to support himself” (emphasis added by Faherty J.).”

We would submit the test for dependency in this area of law is very well established. Decisions by the Minister applying the wrong legal tests may therefore be subject to challenge before the courts.

Further updates on the Khan case will be posted in due course.