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I had asked some questions previously about EU Free movement rights like this one. I tried to extract answers by posing some scenarios but that proved to be inefficient. So I am trying a new way here to get the answer of the questions in my head.

I might have irritated some of you by now but trust me this question is really a proper question, so read it extremely carefully.

Two types of EU family reunification are there---for direct family, and for extended family. It seems that extended family members have little legal weight for succeeding in an appeal in case their application is rejected (for whatever reason). BUT, I have found that whenever genuine applications for extended family members (as defined by EU law) have been refused, they eventually succeed in their appeal and the Court finally overturns the refusal and grants residence card.

Examples: UK case and Ireland case

In both cases the Court eventually found that the Minister wrongly refused residence application by stating that the evidence or documentation is insufficient while it was actually more than sufficient. This means that either such Minsters are deliberately doing that or they are incompetent, but it is likely that the former will be the case most of the times.

But anyway there is at least a right to appeal, even though extended family members have weaker rights in the courtroom than direct family members. At least they can reach the courtroom and in my opinion, that is all what is required, as the Court will definitely overturn a decision by the Minister which was wrongful (note that wrongful means that genuine cases and proper documentation was refused for some or the other reason(s)).

How do the rights of direct and extended family members differ when genuine cases with proper documentation always win in the end (be it directly, or after an appeal)? Extended family has weaker rights, but how? All genuine cases eventually win like the examples I provided above (Minister wrongfully stated that evidence was insufficient and the Court very well overturned that). In what way then, extended family members have weaker rights than Direct family members?

I know you would say that extended family do not have residence as a right, like direct family has, but that's not my point. My point is that although extended family members do not have it as their right, genuine cases always make their way into the EU. If the minister takes advantage of the fact that extended family does not have any legislative backing/support, and that their applications can be refused on whatever grounds they like, the minister wouldn't succeed in his mission as the Court would eventually overturn the wrong practice of not accepting genuine cases and proper evidence. So how does having a right differ from not having a right (direct vs extended) when the final outcome is going to be the same for genuine cases with proper documentation/evidence? I am asking how does it differ?

PS: It is also not the case that Courts couldn't help extended family members because they don't have any European legislation for them. My examples clearly demonstrate that Courts do overturn decisions of ministers even though extended family has nothing as a right in EU law simply because the Court will undo the illogical and unlawful. Moreover, in the Irish case above, it is interesting to further note:

"The court does not consider that a approach by a decision-maker which amounts, in effect, to ‘Put in an application, I will not tell you even at the most general level, not even by way of non-binding guidance, what type of material I am looking for, but I will let you know if I do not see it’ is reasonable or entails fairness of procedure. It is unreasonable and unfair that the Minister should know what, at a general level, he is looking for when it comes to assessing applications generally, but will give no sense to applicants as to what it is that he is looking for, i.e. the unreasonableness/unfairness flows not from the Directive or the Regulations per se but from the closeted manner in which the Minister has elected to discharge his obligations to the detriment of applicants who, as a consequence of his approach, are unfailingly operating to some extent ‘in the blind’ when making an application such as that at issue here."

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The rights are different

Direct family has an automatic right of residence - all they need to do is prove that they are direct family.

Extended family has the additional obligation of proving hardship. In addition to proving their familial relationship they must also prove that they will suffer actual hardship if they remain where they are. Basically, that means that there are legitimate reasons that they are unable to earn a living commensurate with the standard in their home country not the [usually] better standard in the EU. For example, that they are unable to work because of age, disability or persecution.

The evidence for this hardship is subject to assessment by the decision maker to determine if the legal requirement has been met. In marginal cases, provided the decision maker has considered all the evidence and has arrived at a decision that a reasonable person could arrive at and has adequately explained their reasoning process they are legally allowed to be wrong.

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  • (1) This answer is very useful. I agree to your point of proving hardship. But what about extended family members who are household members of the EU citizen, and not a dependent relative? Household members are a separate category along with Durable/unmarried Partners, dependent relatives (financially) and dependent relatives (due to age or disability). All of these except household members will definitely suffer hardship if residence is not granted. Is the status of being a household member sufficient to prove hardship if residence is not granted?
    – Jay Shah
    Aug 21 '20 at 6:11
  • (2) I am asking that because I think if an entire family migrates to an EU country (let's say that family consists of a person, their spouse, their minor children and an additional household member living with them for decades, and earning income which is so low that it is not taxed), the remaining household member will be left alone (who lived with their family for decades)? Is this state of loneliness not hardship?
    – Jay Shah
    Aug 21 '20 at 6:15
  • (3) Lastly, if I go by your answer, proving hardship will be the only difference that separates direct family members and extended family members' applications. So if an extended relative proves their genuine hardship, but the minister refuses, and then they appeal to the Court, will the Court rule that the Minister wrongfully refused the presence of genuine hardship and that the application should be accepted since all other factors in the application are proper?
    – Jay Shah
    Aug 21 '20 at 6:19
  • There is a reason I am claiming that household membership does not require additional obligation of proving hardship. Look at this carefully, where the refused application was overturned and granted residence. The Court concluded that the minister did not err in claiming that the applicant is NOT a dependent (see 14. (5)), but rather erred in claiming that evidence was inefficient for proving household membership (see 3. (1) and 5. (2)).
    – Jay Shah
    Aug 21 '20 at 7:02
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    Followed the rules, considered the evidence and made a decision - just not the decision the judge would have made. That is, the judges role is to make sure the Minister did his job, not to do the Minister’s job
    – Dale M
    Aug 21 '20 at 8:32

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