Luxembourg, 17/01/2007 (Agence Europe) - In its judgement in case C-1/05 on 9 January, the EU Court of Justice explained the conditions constituting “economic dependence” of a parent when granting a residency card for the purposes of family reunification. If a third country national, residing legally in Union territory, wants the relatives in the ascending and descending lines of their family to join them, Community law stipulates that Member States can demand that the parent in question be financially dependent on the resident. It is not enough, however, that the latter be obliged to be responsible for the parent, it is up to the residency candidate to prove this “dependence”. The judgement also clarifies the relations between the law on free movement and the right to residency.
A Chinese national, Yunying Jia, joined her son Shenzhi Li, also of Chinese nationality, who was living in Sweden with his German wife Svanja Schallehn. Shortly before his tourist visa expired in 2003, Yunying Jia made a request for a residency card claiming that she and her husband were dependent on the financial support of the Li/Schallehn couple.
The demand was rejected because of lack of proof that Mrs Jia genuinely depended on contributions paid her by her son and a ruling was made on her deportation. Mrs Jia therefore appealed to the Utlänningsnämnden, a semi-governmental body of the Swedish government in charge of immigrant affairs.
Before ruling on the matter, the Utlänningsnämnden decided to pose two key questions to the European Court of Justice. Firstly, in what circumstances should a Member State recognise economic dependence of a parent, as laid down in the Article 1 of Directive 73/148/ECC of the Council which states, “Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of…the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality”. The second question is related to the issue of free movement of persons within the Union, particularly with regard to whether a Member State can or must demand preliminary legal residency from an applicant in the Union before granting a residency permit.
In response to the first question, the Court's answer was very clear that “to support the family member concerned” does not constitute proof of economic dependence. The appeal referral may also require necessary proof to ensure that the parent in question genuinely depends on this contribution to subsidise her basic needs.
The answer to the second question explains that Community law does not mean that the granting of a residency card must be subject to the condition that the parent has previously resided in another Member State. It provides some further definition of the problematic relationship between the right of residency and the right of free movement of persons, which had already been tackled by the Court in the Akrich case (C-109-01/01, EUROPE 8548).