I'm inclined to agree with
Wanderer. It is not as simple as you think it is.
To begin with, as a brother, you are not a "family member", but "other family member who could be beneficiaries" of Directive 2004/38/EC. There is no requirement under European law for "other family members" to be given a visa as of right, only that it should be "facilitated". The meaning of "facilitated" is given in
a judgment of the European Court of Justice. It gives a very wide discretion to Member States for setting rules regarding "other family members", as opposed to "family members", who get automatic rights.
The summary of the judgment is below;
1.
– the Member States are not required to grant every application for entry or residence submitted by family members of a Union citizen who do not fall under the definition in Article 2(2) of that directive, even if they show, in accordance with Article 10(2) thereof, that they are dependants of that citizen;
– it is, however, incumbent upon the Member States to ensure that their legislation contains criteria which enable those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons;
– the Member States have a wide discretion when selecting those criteria, but the criteria must be consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2) and must not deprive that provision of its effectiveness; and
– every applicant is entitled to a judicial review of whether the national legislation and its application satisfy those conditions.
2. In order to fall within the category, referred to in Article 3(2) of Directive 2004/38, of family members who are ‘dependants’ of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes, at the very least at the time when he applies to join the Union citizen on whom he is dependent.
3. On a proper construction of Article 3(2) of Directive 2004/38, the Member States may, in the exercise of their discretion, impose particular requirements relating to the nature and duration of dependence, provided that those requirements are consistent with the normal meaning of the words relating to the dependence referred to in Article 3(2)(a) of the directive and do not deprive that provision of its effectiveness.
Have you stayed with your brother as a part of his household in either your country of origin or in the United Kingdom? If you have stayed with your brother in his household, you could possibly qualify as "other family members who live (or have lived recently) in the same household (even if they are not dependent)". But I'm not entirely sure your wife and children would qualify.
More info:
https://eumovement.wordpress.com/2008/0 ... ficiaries/
In order for your brother to exercise his treaty rights, he will need to move "the center of his life" to another EEA country (i.e. get a job there, get a house there, etc; a process definitely exceeding three months and of roughly six months to a year) and invite you and your family there under Directive 2004/38/EC. Once he has exercised his treaty rights there, when he returns with you and your family to the UK, you can then apply for relevant permits under EEA Regulations, which, as I mentioned above, given that you are not a direct family member, is not guaranteed.
