Order — ECLI:EU:C:2022:855
Date: 2022-10-28
Language of the case: English

Summary of submissions of the parties
22. In summary, much of the argument from Mr A and Mr S and from the Minister in reply centred 
on the wording of the Directive, the Recitals to the legislation and the analysis of the meaning of 
the central term of member of a household given by the Court of Appeal. Since this is quoted in 
full above, it is unnecessary to be repetitious. Mr S and Mr A argue that a level of financial 
assistance coupled with living under the same roof constitutes Mr A a member of the household 
of Mr S, the EU citizen moving to Ireland. Great emphasis is placed on their early life in proximity 
together, which ended when Mr A was 10 or 11 years old, and the continuing assertion of family 
ties whereby Mr S helped Mr A when he came to Britain from Pakistan in consequence of wanting 
to do further study. It is a combination of factors that is asserted to move sharing living 
arrangements into some more permanent state of being a member of not just a household, which 
many people are, whether sharing accommodation for a particular purpose such as study or work 
or out of economic necessity or from convenience, whereby Mr S would be inhibited from moving 
from Britain to Ireland without the company of Mr A. The Minister, on the other hand, rejected
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the application because Mt A was not demonstrated to be the head of the household in which Mr 
S lives, and this approach is contended to be wrong.
23. While Mr A and Mr S are not in an emotional relationship with each other, in the sense of an 
enduring physical relationship, it is argued on their behalf that there is no appropriate analogy to 
what may be referred to as a partnership, where two men are a couple. Nor, it is argued, is there 
any true inference as to interpreting the Directive to be drawn whereby under the directive, a 
person is a family member by virtue of being a parent to a child up to that child’s 21st birthday 
unless dependency continues beyond. It is not the purpose of the Directive, the argument goes, to 
draw a line but rather to broadly describe a flexible situation. Thus, while Mr A is 34 years old, that 
does not matter, it is claimed, nor that he may be expected to marry and move on or find gainful 
employment of his own.
24. For the State, it is asserted that there is an appropriate analogy to be drawn as between family 
member and permitted family member. It would be senseless, the argument runs, that a family 
member be so well defined, a parent a spouse or a child who ceases to be a child at age 21 unless 
dependent, or that relationships must be duly attested, if it be the case that cousins in middle age 
can claim because of some help given by the EU citizen cousin to the other and shared 
accommodation, that the one helped is in the household of the other. Especially when the entire 
purpose of the arrangement is for study on a visa, a necessarily temporary arrangement, and study 
for a higher degree, a necessarily finite educational course. For the State, the argument is that house 
sharing is finite, a visa is finite, a university course comes to an end and so does help to someone 
who may be trying to improve himself/herself. For all these reasons, the State contends, on no 
permissible interpretation of the Directive, is Mr A a member of Mr S’s household. It was only 
when Mr A’s visa for Britain ended that he came to Ireland and not because of some kind of 
interdependency that would qualify, die State claim, for him being a member of Mr S’s household.
The need for a reference
25. The test as to who is a member of the household of an EU citizen could depend on whether 
that person is the principal person or head of the household. While this is an old-fashioned term, 
it may none the less be of some use in distinguishing family relationships that are covered by the 
Directive and those which are not. What are the criteria is the issue. Just because cousins are close, 
as many cousins are emotionally and in terms of time spent together while growing up, does that 
necessarily mean that if one is an EU citizen the odiers are members of that citizen’s household? 
In Ireland, it is common in the older generation, over 50, to have two or even three dozen first 
cousins. Where people have multiple marriages, that number may be equally large for cultures 
which support such customs.
26. It is perhaps to be noted that family members in the Directive centre on the nuclear family, 
two parents and their children. Children grow up and it is possibly significant that aged 21, unless 
there is dependency, perhaps due to health issues or because of extended study funded very 
substantially by the parents, the state of childhood ceases. Children do not then move as of right 
with their parents. What is the position of cousins in middle age? It may be relevant to question 
whether these could constitute permitted family members where both are in good health and 
capable of working? The concepts of family members and permitted family members perhaps 
should be considered as a package of legislative rules and not in isolation.
27. Reference to other languages may or may not be helpful, a literal translation is possible but the 
resonance in that language may be lost. This Directive illustrates this. The phrase that someone is 
a member of the household of an EU citizen: in German is “oder der mit ihm im Herkunftsland 
in hauslicher Gemeinschaft gelebt hat” which literally says or who lives with him in the same house
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in their country of origin; in Greek “q £ei imo tt] aTeyr) tou cttt) %<x>Qa TtpoeXeuaqc;” which literally 
says or lives under his roof in the country of origin; in French, perhaps most eloquendy “si, dans 
le pays de provenance, il est a charge ou fait partie du menage du citoyen de l'Union beneficiaire 
du droit de sejour a titre principal” declaring that the right emerges from dependency or being part 
of the household; in Italian “se e a carico o convive” which might literally only mean people living 
together; and in Spanish “o viva con el ciudadano de la Union beneficiario del derecho de 
residencia con caracter principal”, literally saying lives with the Union citizen beneficiary with the 
principal right of residence.
28. What is a household may not be capable of a precise definition. But it is an EU-wide concept 
which requires clarification. Perhaps that may be best done by a set of criteria, the existence of 
which may enable national courts to achieve a uniform interpretation. One criterion which is 
important is time. The length of time spent in the household of the EU citizen is important. This 
may indicate a transitory or a settled embeddedness in the household of the EU citizen. But does 
there have to be a principal person or head of a household, who is the EU citizen, as opposed to 
friends or siblings sharing accommodation? Could everyone sharing quarters with everyone else 
be mutually members of that other’s household where one is an EU citizen? Hence, another 
important criterion may be purpose. Where a cousin comes to a household for a purpose, as is 
very common in Ireland, for instance to study at a university, or to assist for a time with child 
rearing, that relationship is not settled but is dependent on externals; how long a course will last 
or when a child may be ready to go to school. A further criterion may be intention. Is there a 
settled purpose in the EU citizen to accept a non-EU citizen into their household as a member of 
the household or was there some transitory or task-specific reason behind the non-EU citizen 
being there? What also may be important as a criterion is the relationship as between those sharing 
accommodation, be they cousins or friends or work colleagues. Who is the dominant party, is it 
the EU citizen? Or is it the non-EU citizen. By dominant, here might be meant with authority to 
accept the non-EU citizen into the EU citizen’s household. Could that EFT citizen ask the non-EU 
citizen to leave? On the other hand, is this a house or flat sharing arrangement, many of which 
endure for years because it suits both parties, but does that make each person sharing 
accommodation a member of the household of the other, and on what basis? Finally, it is suggested 
as a possible criterion that since the purpose of the Directive is to facilitate free movement, it has 
to be asked if Mr S, as an EU citizen, moves from Britain to Ireland, how would it inhibit him if 
Mr A did not come with him? If an inhibition is alleged, is this because of a sexual relationship, 
which perhaps is based on another legal aspect of being an “enduring relationship properly 
attested” equivalent to espousal and hence not relevant here, or because of emotional ties (how 
hard are they to break?) or because an arrangement suited, if so why and for what reason and over 
what time?
Questions posed
29. The Supreme Court therefore asks the assistance of the Court of Justice of the European 
Union by referring the following questions:
1. Can the term member of the household of an EU citizen, as used in Article 3 of Directive 
2004/38/EC, be defined so as to be of universal application throughout the EU and if so 
what is that definition?
2. If that term cannot be defined, by what criteria are judges to look at evidence so that 
national courts may decide according to a settled list of factors who is or who is not a 
member of the household of an EU citizen for the purpose of freedom of movement?
Signed
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30. This reference is signed by the presiding judge of the Supreme Court of Ireland sitting on this 
case.
Frank Clarke
Dated: Monday 21 December 2020