Opinion of the Advocate General — ECLI:EU:C:2023:115
Date: 2023-02-16
Language of the case: English
Subject matter: Citizenship of the Union;Right of establishment;Principles, objectives and tasks of the Treaties;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Ireland

SUMMARY OF THE ARGUMENTS OF THE PARTIES
29. The Minister argues that the wotds in Atticle 11 (1) of the 2015 Regulations ". . .and does
not become an l'lftreaszftable burden on the social assistance ysten of the State" are compatible
with the Directive as applied to persons such as GV, who ardve in the State and claim
a derived right of residence on the basis that they are dependent family members in
the ascending line of EU citizen workers exercising their free movement rights in the
State. The Minister argues that the definition of family member contained in Article
2Q)@ of Directive 2004/38/EC includes a requirement that the family membet
remain dependent on the Union ciizen for so long as the derived right of residence is
assetted, and that the derived right of tesidence is lost where dependency no longer
exists. The Minister argues that, if GV were to be granted Disability Allowance, her
claimed dependency on her daughter would no longer exist and, therefore, she would
no longer enjoy a derived right of residence in accordance with Directive 2004/38/EC.
30. In support of that argument, the Minister notes that the purpose of the Directive is to
establish a right of residence, subject to certain conditions and that any right to claim
social assistance ftoma Member State is a consequence of being able to assert a right
of residence (see Case C-333 /13 Dano u. Jobcenter LttPQS (ECLI:EU:C:2014:2358) at
568 - 71). The Minister also argues that the Court has tecognised that Member States
are entitled to place tesftictions on access to theit social security systems and only those
persons who comply with the conditions upon which the dght of residence is based
will be entitled to claim social secudty payments (see Cases C-333/13 Dano u. Jobcenter
Lrtpdy at $73 - 75, C-1.40/12 Brry (ECLI:EU:C:201,3:565), C-308/1,4 Conmission u.
Unired Kingdorn @,CLI:EU:C:201,6:436) and C-67 /1,4 Alinanoait
(E CLI :EU : C :201 5:597)).
31. It is the position of the Minister that regulation 11(1) of the 2015 Regulations does not
contain an absolute bar on the payment of social assistance but tather an assessment
of whethet grant of the social assistance at issue would, on the facts of the particular
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case at issue, mean that the applicant in question becomes an "tlflreAJznable burden on lhe
sodal assistance tlsten of the State",
32. The High Court held that the question of dependency is finally determined at the time
when a famrly member seeks to join the Union ci.j;zen worker in the host Member
State, i.e. that dependency must be assessed only "in the cowntrl of origin and at the tine
when thefami[tmenber @plie: tojoin the EU citiryn on ahom thel are dEendent". The Ministet
argues that this finding does not flow ftom the manner in which the concept of
dependency has been considered by this Coutt. The Minister notes that the existing
decisions of the Courts focus on how dependency can be established (in particular,
pdor to ativalin the State) rather than the circumstances in which dependence is eithet
broken aftet aniivalin the State, ot how it can be considered to continue to exist. In the
Minister's submission, where dependency ceases, the derived right of residence based
upon that dependency also ceases. This can be seen, for instance, by the use of the
present tense ("are" dependants) in Article 2(2) of the Directive. It is the Ministet's
position that nothing in EU law precludes re-assessment of whether the claimed
dependency, which forms the basis of the derived dght to reside, continues to exist in
the host State. On the contrary, Article 1,aQ) of the Directive conftms that the right
to reside pursuant to Article 7 of the Directive continues to exist for so long as the
family member continues to meet the conditions set out in the Directive,
33.In fesponse to GV's reliance on Case 31,6/85 I-,ebon @,CLI:EU:C:1987:302), the
Minister notes that in that case, in the context of considering the rights contained in
Regulation 161,2/68, the Court held that assessment of dependency is a 'factual situation,
narne[t the prouision of wpport b1 the worker, without there being aryt need to detemtine the reason'!
for recourse to the worker's support" and that "the statws of dependent fanifu raember does not
prewrylse the exittence of a right to maifttenance" (see also Case C-1'/05 ]io
(ECLI:EU:C:2007:1) at $36 * 37), In Lebon the Court also conftmed that an
entitlement to social assistance may be lost whete dependency is broken (see $14). In
Case C-21.8/1,4 Singh @,CLI:EU:C:2015:476) it was confumed that the dght of
residence of a family member to reside in a host Membet State on the basis of Atticle
7(2) continues only as long as they meet the conditions laid down in that provision (see
ss7).
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34. The Ministet further notes that the Court has also held that to qualift as a dependant
"the existence of a situation of real dependence mast be established" (Case C-423/1,2 Reys
(ECLI:EU:C:2014:16) $20; Case C-1, /05 Jia $20). The Minister notes that, in Reltes, the
Court conftmed that in order to qualify under Article 2(2), it is a condition that
dependency must exist prior to ently to a Member State (at $22) and found that such
dependency could be demonstated by showing the regular payment of a sum of
money to the dependant, It was also held that the fact that a famjly member was in a
position to find work did not affect the interpretation of the concept of dependency
and that a Member State could not oblige a descendant family member to have tried
to obtain work in their country of origin in order to be considered to be dependent
nor did the fact that a descendant family member might obtain work in the Member
State preclude their retaining the status of "dependanl" (see $28 and $33). However, the
Ministet notes that Reles conce.tned the question of entry to the State, i.e. the ex-ante
assessment of dependency upon anival in the State. It did not concern the question,
as hete, whether the status of dependence can be lost when the family member is
resident in the host State.
35. GV submits that regulation 11(1) of the domestic implementing Regulations is
unlawful and ultra vires the Citizenship Directive by imposingthe"unreasonable burden"
condition on EU citizens who are working in the State, and their qualifying family
members such as a dependent ditect relative in the ascending line, in circumstances
where no such condition is contained in Article 7 of the Directive. GV's daughter is
an EU national who has tesided and vrorked in the State for many years; she therefore
has a right of residence in the State pursuant to Article 7 (1)(a). GV, who is a dependent
ditect relative in the ascending line, therefore has a ight of residence in the State
ptustrant to Article 7(1Xd) \X/here a family membet, such as GV, is resident in a
MembetStateundetArticleT(1)(d) asafamilymemberofanEUcitizenresidentunder
Article 7 (1)(a), they are not subject to the "unreasonable burden" condition. GV submits
that the conditions attaching to each category of Union citizen and their famtly
members are set out exhaustively in Atticle 7 , and that it is not open to Member States
to impose additional conditions other than those ptovided for in the Article. The
requirement for self-sufficiency is confined to economically inactive citizens and their
family members; and to students and their family members. In respect of the latter, the
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category of family members of a student who are entitled to tesidency is restricted
under Article 7(4).
36. Furthermore, as the High Court judge noted 
^tpara,21 
of his judgment, "the ight of
equal treatntent applies not on/1 to EU ritiqens, but also extends to farailt nenbers who are third
country nationah with the right of residence 0r peftllanent residence in the ho$ S tate." Arttcle 24Q)
permits a derogation that the host Member State shall not be obliged to confer an
entitlement to social assistance, but this derogation applies only during the ftst thtee
months of residence (Article 6), or for EU citizens who are seeking employment
(Article ta(a)@)); neither of which applies in the instant case.
37. GV further submits that the Ministet's contention that teliance on social welfare
assistance would mean that GV was no longer dependent on her daughtet is not
supported by the case law of the CJEU on the concept of dependency. As the CJEU
held at pan.21. tnReys
"That dependent status is the tesult of a facttral situation characterised by the fact
that material support for that famiTy member is provided by the Union citizen who
has exercised his right of free movement or by his spouse (see, to that effect, Jia,
patagraph 35);'
38, It was further held in Reles at pan. 22 that 'The needfor rnaterial support must exist in the
State of origin of that desandant orthe State whence he came at the tine when he applie: tojoin that
citiqen" and that the foregoing is met when: "HJ Uoioo citiryn regularb,-fo, a :ignficant
period, Prys a sum of nonejt to that desnndant, necerratJ in orderfor hin to support himself in the
State oJ'origin, h :ach as to show that the descendant is in a real ituation oJ'dependence uit-d-uis that
dtiTen" (atpara,24).
39. The CJEU tnReles also addressed the issue of whethet a family membet could lose the
status of dependant once present in the host Member State (in that case by the family
member taking up employment), holding 
^t 
p^n. 33 that 'Artick 2(2)(4 of Directiue
2004/ 3S mu$ be interpreted as meaning that thefact that a relatiue - dae to personal drcan$ances
vch as age, edacation and health - is deemed to be well plaad to obtain ernplolnent and in addition
intends to start work in the Menber State does not ffict the interpretation of the requirenent in that
prouision that he be a 'dependant'."
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40. As the High Court judge held 
^t 
p^r^s. 51-52 of his judgment in the instant case:
"51. The same logic applies where a subseqaent loss of dependence is caused by the
family member being granted social assistance in the host Member State. Provided
that the tequisite dependence has been established in the State of origin at the time
the derived right of residence is sought, then the residency status is not affected by
the grant of social assistance thereaftet.
52, The conff^ry interpretation advanced on behalf of the respondents is not only
inconsistent with the case law discussed above, it would also be inconsistent with
Article 24 of the Citizenship Directive,.,"
41. GV respectfully disagrees with the contention on behalf of the Minister that the
decisions of the CJEU in cases such as Lebon, Jia and Reyt pnmarily consider the
question of how dependency can be established for the purpose of establishing an
initial dght of residence rathet than the question of the circumstances in which
dependence is either broken or how it can be considered to continue to exist. It was
ptecisely this issue that was consideted by the CJEU tn Lebon andReys. As the Court
noted 
^tp^n.20 
of Lebon:
"[A] claim for the grant of the minimex submitted by a membet of a migrant
wotkef's family who is dependent on the worker cannot affect the claimant's status
as a dependent member of the worket's family. To decide otherwise would amount
to accepting that the gtant of the minimex could result in the claimant forfeiting
the status of dependent membet of the family and consequently justify either the
withdrawal of the minimex itself or even the loss of the right of residence, Such a
solution would in practice pteclude a dependent member of a worker's family from
claiming the minimex and would, for that reason, undermine the equal treatment
accorded to the migrant wotker. The status of dependent member of a worker's
famiiy should therefote be considered independently of the grant of the miniftex."
Furthermore, GV argues, thete is a fundamental illogicabty at the heart of the
Minister's submission that the key issue is the circumstances in which dependence is
eithet btoken or how it can be considered to continue to exist. If, as is submitted by
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the respondent herein, in accordance with fu1es and the cases cited therein, the
requirement to demonstrate dependency fot the purposes of establishing status as a
qualifying family membet is focussed on establishing dependence in the country of
origin, then the Minister's submission that it is also necessary to demonstrate continued
dependence in the host Member State is entirely misconceived.
42. Fnally, it is submitted on behalf of GV that the Minister's position would violate the
right to equal ffeatment contained in Article 24 of the Citizenship Directive which
provides fot only three detogations, none of which are of any application in this case.
This was conftmed by the Coutt in joined cases C-22f08 and C-23/08 Vatsourat
@,CLI:EU:C:2009:344), C-75 /11 Cornnission u. Aa$ia (ECLI:EU:C:2012:605) and C-
333/1,3 Dano. As the Court confrmed in Case C-46/1,2 L.N. (ECLI:EU:C:2013:97),
as a derogation from the principle of equal treatment provided for in Article 1B TFEU,
of which Atticle 2a() ofDuective 2004/38/EC is metely a specific expression, Article
24Q) must be interpreted nartowly and in accordance with the provisions of the
Treaty, including those relating to citizenship of the Union and the free movement of
workers. \X/hile the Court's decision tn Brejt noted that Member States rnay have a
"marginformanleuure", it also stated that this must not be used by them in a manner
which would compromise attainment of the objective of Directive 2004/38/EC.
STATEMENT OF THE REASONS PROMPTING THE REFBRRING COURT TO
MAKE THE PRELIMINARY REFERENCE
43. Although the authodties relied upon by the parties touch on the questions now
referred, none of them address the precise questions posed by this reference, and it
cannot be said that the matters raised by these proceedings are acte claire. The case of
Lebon, telied upon by GV, dates back to 1.987 and concerns Directive 161.2/68.The
issues raised ate of systemic importance both as to the full extent of the rights of
residence conferred upon dependent family members of Union citizens under
Directive 2004/38/EC, and as to eligibility to access to the social welfare systems of
host Member States by such family membets, The questions raised involve the
interpretation of Directive 2004/38/EC, as well as the existing jutisprudence of the
Court ofJustice, and the Coutt of Appeal considers thata decision on the questions
referred is required in order to enable it to give judgment in the main proceedings.
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Dated: 27 July 2021
Signed
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Ms. Justice Aileen
Judge of the Coutt of Appeal of Ireland
!I
Ms. Justice Una Ni Raifeattaigh
Judge of the Court of Appeal of Ireland
Mr. Justice Donald
Judge of the Court of Appeal of Iteland
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