Opinion of Advocate General Pitruzzella delivered on 10 March 2022.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2022:183
• Date: 10 March 2022

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 10 March 2022 (1)

Case C‑22/21

SRS,

AA

v

Minister for Justice and Equality

(Request for a preliminary ruling from the Supreme Court (Ireland))

(Reference for a preliminary ruling – Right to move and reside freely within the territory of the Member States – Beneficiaries – Other family members – Family member who is a member of the household of a Union citizen – First cousin, a third-country national, who lives with a Union citizen – Dependence – Conditions – Examination by the national authorities – Criteria – Discretion – Limits)

I. Introduction

1. SRS was born in 1978 and is originally from Pakistan. He had lived with his family in the United Kingdom since 1997. In 2013, he obtained UK nationality. AA, a Pakistani national born in 1986, is his first cousin. After attending university in Pakistan, AA continued his studies in 2010 in the United Kingdom. At that time he held a study visa which expired on 28 December 2014. Throughout his residence in the United Kingdom, AA lived in London with SRS as well as the latter’s parents and other members of his family in a house owned by SRS’s brother. SRS paid rent to that brother. On 11 February 2014, SRS and AA entered into a one-year tenancy agreement with that brother.

2. In January 2015, SRS moved to Ireland for work reasons. In March 2015, he was joined in Ireland by AA, who has lived with him since then. On 24 June 2015, whilst he was residing without a visa in Ireland, AA applied to the Irish authorities to be issued with a residence card as a family member of a Union citizen under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (‘the 2006 Irish Regulations’), (2) which transposed into Irish law Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. (3) Regulation 7 of the 2006 Irish Regulations provided that a ‘permitted family member’ of a Union citizen who has been resident in Ireland for not less than three months could apply for a residence card.

3. Regulation 2(1) of the 2006 Irish Regulations defined ‘permitted family members’ of a Union citizen as ‘any family member, irrespective of his or her nationality, who is not a qualifying family member of the Union citizen, and who, in his or her country of origin, habitual residence or previous residence (a) is a dependent of the Union citizen, (b) is a member of the household of the Union citizen, (c) on the basis of serious health grounds strictly requires the personal care of the Union citizen’.

4. Thus, AA did not claim to fall within the category of family members of a Union citizen who are covered by Article 2(2) of Directive 2004/38. (4) AA did, however, claim to be a dependant of SRS and, in any event, a member of SRS’s household.

5. Under Article 3(2)(a) of Directive 2004/38, ‘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: 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 dependants 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 member by the Union citizen’.

6. On 21 December 2015, the Minister for Justice and Equality (Ireland) refused AA’s application, taking the view, in essence, that AA had not provided sufficient evidence that he was a dependant of SRS or that he was a member of SRS’s household. The Minister considered, inter alia, that the actual period of cohabitation of SRS and AA in the United Kingdom since SRS acquired citizenship of the EU was less than two years, that SRS’s parents, his brother and his sister shared the same address in London and that, even if it were established that AA lived at that address, that was not sufficient to regard him as a member of SRS’s household. As for AA’s financial dependence on SRS, such dependence was insufficiently documented in the Minister’s opinion.

7. After furnishing additional evidence, SRS and AA sought a review of the decision of the Minister for Justice and Equality. On 21 December 2016, the Minister confirmed his decision of 21 December 2015 on the same grounds and took the view that, even though they resided at the same address in the United Kingdom, it had not been established that SRS was in fact the ‘head of the household’ when AA lived with him in London, as required by Article 3(2)(a) of Directive 2004/38.

8. AA and SRS brought an action for annulment against that decision before the High Court (Ireland). SRS once again detailed before that court the financial support provided to his first cousin during the period that they lived together in London and stated that he was the only employed person in his household given the advanced age of his parents and his brother’s extended stay in Pakistan. In a judgment of 25 July 2018, the High Court dismissed the application brought by SRS and AA because AA could not be regarded as being a dependant of SRS or a member of a household of which SRS is the head, whilst acknowledging that the latter concept was vague and not defined anywhere.

9. AA and SRS lodged an appeal before the Court of Appeal (Ireland), claiming that the court of first instance had adopted an overly restrictive interpretation of the concept of a ‘family member who is a member of the household’ of a Union citizen. However, in a judgment of 19 December 2019, the Court of Appeal, whilst again noting the difficulties in interpreting that concept, found that merely cohabiting at the same address could not be deemed sufficient to regard AA and SRS as members of the same household of which SRS was the head. It stated that, for a family member to be regarded as a member of the household of a Union citizen, he or she had to be an integral part of the family unit and remain so for the foreseeable or reasonably foreseeable future. In addition, he or she had to live with the Union citizen not just for reasons of convenience but also for reasons of emotional and social connection.

10. Having once again been unsuccessful, AA and SRS then decided to make a final appeal to the referring court, leave for which was granted on 20 July 2020, specifically concerning the question of the definition of the concept of a ‘family member who is a member of the household’ of a Union citizen and whether there must be a requirement that that Union citizen is actually the head of that household. (5)

11. As regards the condition of being a member of the household of which the Union citizen is the head, the Minister for Justice and Equality continues to argue that the mere cohabitation of the family member, perhaps combined with financial support provided by the Union citizen, is not enough to regard the family member thus accommodated and supported as a member of the Union citizen’s household. The Minister observes that AA’s residence on the territory of the European Union was restricted to his studies and that the tenancy agreement concluded with SRS’s brother to occupy the latter’s house was also limited. There is therefore no evidence to suggest that the joint living arrangements were to continue beyond AA’s studies. In addition, Article 3(2)(a) of Directive 2004/38 must be interpreted bearing in mind the effect of any decision to refuse a residence permit on the actual exercise of the freedom of movement enjoyed by the Union citizen. Moreover, it is established that SRS moved to Ireland without AA. A degree of interpretative consistency must also be ensured so that, when interpreting Article 3(2) of Directive 2004/38, the end result cannot be a situation that is ultimately more favourable to the family members covered by that provision – who, in principle, enjoy lesser protection under that directive – as compared with those members of the nuclear family covered by Article 2(2) of the directive.

12. For their part, AA and SRS claim that there are differences between the language versions of Article 3(2) of Directive 2004/38 and that the English-language version contains an additional condition related to the status as ‘head’ of the household which is absent from the majority of the other language versions. Furthermore, they continue to point to the close relationship between them that began in their early youth whilst they were both still living in Pakistan and to close family ties which should be enough for AA to be recognised as a ‘family member’ of SRS within the meaning of that provision, without a further requirement to establish that SRS is the head of the household.

13. The referring court, in turn, doubts whether it is possible to adopt a universal definition of the concept of a ‘family member who is a member of the household’ of a Union citizen. It acknowledges that use of the concept of the ‘head of the household’ allows a distinction to be drawn between merely houseshare or flatshare arrangements and, for example, the closer circumstances of family life, but concedes, at the same time, that this is a difficult concept to define. Furthermore, all of the language versions of Article 3(2)(a) of Directive 2004/38 do not appear to contain such a reference. The referring court therefore asks about the proper meaning of that concept in a context in which the situation of the family members covered by Article 2(2) of Directive 2004/38 must also be borne in mind. Lastly, it mentions...