English Court of Appeal
In Liu Ors v Secretary of State for the Home Department [2007] EWCA Civ 1275, it was argued that "the resources requirement can be fulfilled from employment taken by various of the adults involved, and sickness insurance would also therefore be financed from that income." (see para. 14)
Buxton LJ held that:
However, because the employment of the adults could only lawfully continue until the end of those legal proceedings (under the Immigration Rules, which applied to the adults instead of the EEA rules), and not after. So there would be no such income. Therefore:"If that argument were well-founded, I would be prepared to accept that it could at least potentially fill the gap left by the absence of health insurance."
(see para 15)."[t]he temporary income that has resulted cannot possibly be characterised as sufficient resources to support an application for residence after the present proceedings have been resolved"
CJEU
In Case C‑442/16 Gusa, the Opinion of Advocate General ("AG") Wathelet (delivered in July 2017) essentially stated that while the questions referred to the CJEU were about whether a Romanian national who had become unemployed after four years working in Ireland could still qualify for permanent residency (with the fifth and final year as a jobseeker), he could in fact be deemed to have obtained the necessary fifth year before his four years of work, when he was supported by his kids. AG Wathelet said:
Footnote 16 to that Opinion indicates that both France and the European Commission put forward a similar line of argument in their submissions to the CJEU. I'm going to see whether I can get a copy of these."32. According to the referring court, it was Mr Gusa’s children, legally resident in Ireland, who supported their father during the first year of his residence in Ireland. (13) Far from disputing that information, the respondents in the main proceedings reiterate it as a matter of fact in their written observations. (14)
33. The fact that Mr Gusa considers that the support he received was limited and insufficient for the purposes of Directive 2004/38 (15) does not seem to me to be relevant to the assessment of the applicability of Article 16(1) of that directive.
34. After all, from the point at which Mr Gusa stopped relying on the Irish social assistance system for financial support during his first year of residence, the resources that were available to him must be presumed to have been sufficient. They cannot be retrospectively regarded as having been insufficient for the purposes of Directive 2004/38, given that the Union citizen in question was not, to use the wording of that directive, a ‘burden on the social assistance system of the host Member State’.
35. Consequently, I take the view that the first year of Mr Gusa’s residence in Ireland was legal. Now, if that first period preceded without interruption the four years during which Mr Gusa worked as a self-employed plasterer, he must be regarded as having enjoyed a right of permanent residence in Irish territory, pursuant to Article 16(1) of Directive 2004/38, since October 2012. (16)"
In the CJEU's subsequent judgement in the case, issued in late December, it seems that no mention was made of this obiter line of thinking in the AG's opinion. The CJEU focused more directly on the questions it had been asked.
As I continue my research, I was wondering: is anyone aware of anything else that would support or contradict the view that family members (or other sources of financial resources) can satisfy the CSI requirement?