Pedro v Secretary of State for Work and Pensions

For a dependent direct relative within Article 2(2)(d) of Directive 2004/38/EC, dependence need not have existed in the country of origin or when the Union citizen moved. It may arise in the host Member State. The inquiry is factual and focuses on material support, without requiring investigation of the reasons for dependence or the relative’s ability to work. Article 2(2)(d), read with Article 8(5)(d), contains no country-of-origin or timing requirement. That differs from Article 3(2)(a) and Article 8(5)(e). An interpretation that could realistically deter a Union citizen from moving or remaining in another Member State is inconsistent with the Directive’s purpose of strengthening free movement rights.

The appellant, a Portuguese national, lived in the United Kingdom with her son, an EU national. After becoming ineligible for Jobseeker’s Allowance, she claimed state pension credit. The claim was refused on the ground that she was not treated as being in Great Britain.

The Social Security Appeal Tribunal allowed her appeal. On 31 July 2008, Deputy Commissioner Ramsay allowed the Secretary of State’s appeal in CPC/1433/2008, holding that dependence had to exist in Portugal before the appellant joined her son. The Court of Appeal considered whether regulation 2(4) of the State Pension Credit Regulations 2002 applied to her as a dependent ascending relative under Article 2(2)(d), and whether dependence had to arise in the country of origin.

1. Appeal allowed. Goldring LJ gave the leading judgment, with Sullivan and Mummery LJJ agreeing. The Deputy Commissioner had misread regulation 2(4)(d) of the State Pension Credit Regulations 2002. The reference to a family member of a person in subparagraphs (a) to (c) referred to those subparagraphs of regulation 2(4), not to Article 2(2)(a) to (c) of Directive 2004/38/EC. The relevant category was therefore a dependent direct relative in the ascending line under Article 2(2)(d).
2. Whether a person is a dependent family member is a question of fact. The status is characterised by material support provided by the Union national. The reasons for dependence and the possibility of supporting oneself through employment are immaterial. There is no relevant distinction between workers and self-employed persons.
3. The country-of-origin requirement stated in Jia was not applicable under the Citizens’ Directive. It derived from the evidential framework in Article 4(3)(e) of Directive 68/360/EEC. Article 8(5)(d) of Directive 2004/38/EC contains no equivalent requirement for Article 2(2)(d) family members, unlike Article 8(5)(e) for other family members under Article 3(2)(a). Article 2(2)(d) also specifies neither when dependence must arise nor that it must arise in the country of origin. Dependence arising in the host state is sufficient.
4. The Directive must be interpreted effectively and without restriction. Metock and Eind show that an interpretation capable of realistically deterring a Union citizen from moving or remaining with close family members would impede free movement. The Commission’s guidance was therefore incorrect insofar as it applied the country-of-origin requirement to facts of this kind. A reference to the European Court was unnecessary. Remittal was also unnecessary because the Tribunal had plainly found that dependence arose when the appellant became 60. The appeal was allowed.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 1358: allowed the appeal and held that dependence arising in the United Kingdom could satisfy Article 2(2)(d).
• Upper Tribunal Administrative Appeals Chamber — CPC/1433/2008, 31 July 2008: Deputy Commissioner Ramsay allowed the Secretary of State’s appeal, treating dependence in the country of origin as necessary.
• Social Security Appeal Tribunal — 13 December 2007: held that the appellant should be treated as being in Great Britain as a dependent family member of an EU national.