[2006] UKAIT 90
- Case title: MA (EU national - self-sufficiency, lawful employment)
- Appellant name: MA
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Bangladesh
- Judges: Senior Immigration Judge Storey, Senior Immigration Judge Grubb
- Keywords EU national - self-sufficiency, lawful employment
The decision
ASYLUM AND IMMIGRATION TRIBUNAL
MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 12 September 2006
Promulgated on: 08 December 2006
Before:
Senior Immigration Judge Storey
Senior Immigration Judge Grubb
Between
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr M Chatwin, Counsel instructed by Fernandes Vaz, Solicitors
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
An EU (EEA) national child cannot rely upon income derived from a parent lawfully working in the UK during a period of limited leave restricted to a specific purpose or who is on temporary admission and not prohibited from working in order to establish a right of residence based upon ‘self-sufficiency’. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.
DETERMINATION AND REASONS
1. These reconsiderations concern the joined appeals of an EU national child and her parents. The first and second appellants are married and are nationals of Bangladesh. The third appellant is their daughter who was born in Dublin on 4, November 2001 and so, by virtue of the jus soli rule then applied by the Republic of Ireland to questions of nationality, is a citizen of the Republic of Ireland.
2. On 11 July 2005, applications were made on behalf of the third appellant for a residence permit under EU law and, in the cases of the first and second appellants, for leave to remain as her parents under paragraph 257C of the Immigration Rules (Statement of Changes in Immigration Rules, HC 395). The third appellant claimed a right of residence in the UK as a self-sufficient EU citizen under Article 18 EC Treaty and Directive 90/364. The first and second appellants claimed that they had a derivative right of residence in the UK as the third appellant’s parents and her primary carers.
3. On 13 March 2006, the Secretary of State refused the applications on the basis that he was not satisfied that the appellants would be able to support themselves without recourse to public funds or by taking employment. The latter was prohibited for the first and second appellants by virtue of paragraphs 257C and 257D of the Immigration Rules. The appellants appealed. In a determination promulgated on 11 May 2006, Immigration Judge Turcan dismissed their appeals. They sought reconsiderations which were ordered by a Senior Immigration Judge on 25 May 2006.
The facts
4. The facts of these appeals are not now disputed. The first appellant was given leave to enter the UK as a student on 3 March 1998 and his leave, we are told, was subsequently extended in stages until 31 December 2005. During that time, he studied for the Bar at Northumbria University and was called to the Bar in March 2004. In 2005-2006, he undertook further study for an MBA at the Commonwealth College of Law and Business Studies in London and at the time of the hearing before the immigration judge was about to complete that course.
5. On 21 February 2000, he married the second appellant in Bangladesh and she was given leave to enter the UK on 6 July 2000, we assume as his spouse. The second appellant became pregnant and gave birth to their daughter (the third appellant) in Dublin on 4 November 2001.
6. During their time in the UK, both the first and second appellant have worked. At the hearing before the immigration judge, the evidence was that the first appellant worked part-time for Boots and the second appellant worked as a customer service assistant for Sainsbury’s. There was evidence of their financial position including bank account details. It was accepted by the immigration judge that as a matter of fact their income was enough to make the family self-sufficient in the sense that they did not need to rely upon public funds. It was also accepted that the family were covered by medical insurance through the first appellant’s Boots BUPA Scheme. It was not disputed that the first and second appellants were working lawfully under the terms of their leave as a student and spouse of a student.
7. The immigration judge concluded that the first and second appellants did not have a right to work in the UK which would allow them to sustain the self-sufficiency of the third appellant. Their continued work, as carers of the first appellant, would be prohibited by paragraphs 257C and 257D of the Immigration Rules and those provisions were not contrary to EU law.
Adjournment application
8. At the hearing before us, Mr Gulvin sought an adjournment. He told us that he was not in a position to make submissions on the Home Office’s position on the issue of reliance on lawful income to establish ‘self-sufficiency’ and he wished to obtain instructions from the Home Office’s policy section. Mr Chatwin objected and invited us to continue. Whilst we appreciated Mr Gulvin’s personal difficulties, we did not consider that there had been inadequate time for the respondent to prepare his case for the reconsiderations. It seemed clear to us that the Home Office’s policy is probably crystallised in the prohibitions on employment in paragraphs 257C and 257D. Indeed, in another reconsideration listed before us, the Secretary of State sought reconsideration in an appeal which gave rise to the very same issues and, it is clear from the grounds that that is indeed the Secretary of State’s position. For these reasons, and mindful of the requirements of rule 21 of the 2005 Procedure Rules, we were not satisfied that the appeals could not be justly determined and we refused the adjournment application.
The legal issue in these appeals
9. As we have indicated, the facts are no longer in dispute in these appeals which raise a pure question of law: namely whether an EU national child can establish that she is self-sufficient (and thus has a right of residence in the UK) based upon income derived from the employment of her parents while they are here for a temporary purpose. The appellants claim that the immigration judge erred in law in deciding that the first appellant could not rely on this income. As to her parents, it is said that they derive a right of residence in order to care for her whilst she is exercising her own right to reside in the UK. The appellants rely principally upon the Court of Justice’s landmark decision in Chen and another v SSHD (Case C-200/02) [2005] INLR 1.
10. The Secretary of State contends that the immigration judge was correct. Mr Gulvin submitted that the third appellant could derive no EU right from the current income of her parents. Thus, the prohibition on their future employment found in the immigration rules is lawful and she was not, therefore, self-sufficient. Reliance was placed upon the Tribunal’s recent decision in GM and AM (EU national; establishing self-sufficiency) France [2006] UKAIT 00059.
The relevant EU and domestic legal provisions
11. Throughout this determination we refer to the rights of free movement and residence of EU nationals although the EEA Regulations in fact apply to the slightly broader category of “EEA national” as defined in regulation 2 of the EEA Regulations 2006.
12. As is readily apparent from her circumstances, the third appellant (as a young child) does not rely upon any economic right to move to and reside in the UK as, for example, a worker or self-employed person. Rather, she relies upon the right of free movement and residence of an EU national found in Article 18 of EC Treaty which is in the following terms:
"1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251."
13. As Article 18(1) makes clear, the right to move and reside is subject to limitations and conditions laid down in measures adopted to give it effect. Those measures were originally laid down in EEC Directive 90/364 but were replaced with effect from 30 April 2006 by Directive 2004/38.
14. Article 7(1)(b) of Directive 2004/38 states that:
“All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
…
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during the period of residence and have comprehensive sickness insurance in the host Member State; … “.
15. The Directive further provides that the exercise of the right of residence should not impose an “unreasonable burden” on the social assistance system of the host Member State during an initial period of residence for three months (Recital 10 and Art 14(1)) or during the extended period of residence beyond three months (Recital 16 and Art 14(2)).
16. In addition, Article 7(2) of the Directive confers a right of residence upon certain persons (not themselves EU nationals) who are family members of an EU national who has a right of residence. For present purposes, those family members include direct relatives in the ascending line providing they are dependent upon the EU national (Art 2(2)(d)).
17. Directive 90/364 was transposed into UK law by the Immigration (European Economic Area) Regulations 2000, SI 2000/2326. However, with effect from 30 April 2006, the latter were replaced by the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (the “EEA Regulations 2006”) in order to give effect to Directive 2004/38. The EEA Regulations 2006 take effect retrospectively. Schedule 4, paragraph 5(1) of those Regulations provides that any appeal pending on 30 April 2006 against an EEA decision taken under the 2000 Regulations shall be treated as a pending appeal against a corresponding EEA decision under the EEA Regulations 2006. As a consequence, they are the relevant domestic provisions to be applied by us and the third appellant’s appeal is treated as being an appeal against a refusal to issue a registration certificate.
18. The EEA Regulations 2006 define those EEA nationals who are “qualified persons” and entitled to recognition of their free movement rights. Regulation 6(1) includes within that category “a self-sufficient person”. In turn, Regulation 4(1)(c) states that:
“(c) “self-sufficient person” means a person who has—
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom; ... .”
19. It is this provision which effectively is prayed in aid by the third appellant. The level of resources required is that which is enough to avoid eligibility to social assistance in the UK. Regulation 4(4) states:
“(4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.”
20. Thus, the right of movement and residence is dependent upon establishing (1) self-sufficiency in the sense of sufficient resources to avoid reliance on the social security system; and (2) comprehensive health insurance (see, Ali v SSHD [2006] EWCA Civ 484 and see now, W(China) and X(China) v SSHD [2006] EWCA Civ 1494).
21. In keeping with Directive 2004/38, the EEA Regulations 2006 confer a derivative right of free movement and residence upon certain family members of an EU national exercising a right such as that found in Article 18 EC Treaty. Where that is the case, the whole family (including the family members) must be self-sufficient. Regulation 4(2) requires that the EU national’s “family members” are also covered by comprehensive sickness insurance and the total resources of that individual and his family are adequate to avoid them becoming a burden on the social assistance system. It provides as follows:
“4(2) For the purposes of paragraph (1)(c), where family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person—
(a) the requirement for that person to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if his resources and those of the family members are sufficient to avoid him and the family members becoming such a burden;
(b) the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover.”
22. Apart from spouses (and civil partners), the rights of “family member” apply, for example, to direct ascendants (such as parents or grandparents) of an EU national but only if they are dependent upon that EU national (see, reg 7(1)(c) and Art 2(1)(d) respectively). It is, of course, not suggested in this case that the third appellant’s parents are dependent upon her. Indeed, it is the converse. Thus, the first and second appellants are not directly covered by the Directive or EEA Regulations 2006. Instead, they rely upon the Court of Justice’s decision in Chen.
23. Chen also concerned an EU national child living in the UK who had Irish nationality as a result of being born in Northern Ireland. She lived with her parents who were Chinese nationals. As a result of income derived from her parents’ Chinese business, the child’s mother had sufficient resources to support herself and the child. They also had comprehensive health insurance. As regards the child, the Court of Justice held that she had a right of residence as a self-sufficient person by virtue of Article 18 of the EC treaty and the (then applicable) Directive 90/364. It was not necessary that she should have the resources personally. It was sufficient that there were adequate resources available to her from her mother that made her self-sufficient. As regards her mother (who was her primary carer), the Court recognised that she was also entitled to reside in the UK in order to permit the child to exercise or enjoy its own EU right. The Court of Justice said (at para [45]):
“... a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence ... .”
24. In relation to self-sufficiency, there is no doubt that the Court of Justice required that the child and her carers had adequate resources not to be a burden on the social security system and were covered by medical insurance (see GM and AM, at paras [41]-[42] and W(China) and X(China) v SSHD).
25. Finally, we set out, as relevant to this appeal, paragraphs 257C and 257D of the Immigration Rules which deal with the requirements for the grant of leave to enter or remain as a parent/carer of what might be termed a “Chen child”. It was, of course, under these provisions (particularly para 257C(iv)) that the parents’ applications for leave to remain were refused.
“257C The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child are that the applicant:
(i) is:
(a) the primary carer; or
(b) the parent; or
(c) the sibling,
of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person; and
(ii) is living with the EEA national or is seeking entry to the United Kingdom in order to live with the EEA national; and ….
(iv) can, and will, be maintained and accommodated without taking employment or having recourse to public funds; and ….”
26. Paragraph 257D states that
“Leave to enter or remain is to be subject to a condition prohibiting employment and recourse to public funds.”
Analysis
27. The crucial issue in these appeals is whether the third appellant has established a right to reside in the UK based upon self-sufficiency. If she has, the rights of the first and second appellants follow on the basis of the Chen decision, subject to any applicable restrictions.
28. Mr Chatwin submitted that the appellants are entitled to succeed on the basis of Chen. They are factually self-sufficient based upon the income available to the third appellant’s parents and they have medical insurance coverage. They are not dependent upon public funds and, if allowed to continue working, will remain self-sufficient. Both parents are working lawfully. Mr Chatwin relied upon paragraph [30] of the Chen decision which he said indicates that no restriction can be placed upon the sources of the income relevant to establish self-sufficiency. The Court stated that:
“it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their origin.”
29. He also relied upon the Court of Justice’s decision in Commission v Belgium (Case C-408/03) decided on 23 March 2006 where the Court held that it was wrong to exclude the income of the EU national’s partner in determining whether the EU national was self-sufficient. Further, he referred us to the Tribunal’s decision in GM and AM (especially para [52]) which, he submitted, allowed regard to be had to income derived from parents who have an independent tight to reside and work in the UK. Finally, Mr Chatwin submitted that paragraphs 257C and 257D could not stand under EU law to the extent that they prevented reliance upon future employment in this situation.
30. It seems to us that Mr Chatwin’s submissions break down into two distinct parts. First, the third appellant is argued to be already self-sufficient on the basis of her parents’ income derived from their existing lawful income in the UK. As a result, she has a right of residence in the UK and, derived from that right, so also do her parents as her carers (the ‘lawful income’ point). Second, given the existence of those rights, the third appellant’s parents cannot be prevented from working in order to sustain, it is said, the third appellant’s right (and consequently their own) and to that extent the prohibitions in paragraphs 257C and 257D of the immigration rules are unlawful (the ‘prohibition on work’ point).
The ‘lawful income’ point
31. We begin with a number of preliminary points.
32. First, in establishing ‘self-sufficiency’ there is no doubt that reliance may be placed upon resources from someone other than the EU national himself (Chen – where it was the parents of the EU national child; Commission v Belgium – where it was the partner of the EU national).
33. Second, those resources may at least in some circumstances be income derived from employment or self-employment. It would be unduly restrictive to see ‘self-sufficiency’ as allowing reliance to be placed only on other kinds of resources such as a private income or a pension. In any event, ultimately those may indirectly be derived from employment at some point as in the case of a pension. Thus, in Chen, it was income arising from the employment of the child’s mother by her parents’ company in China which provided the resources to make her and her parents self-sufficient. Likewise, in Commission v Belgium it was the income derived from the EU national partner’s employment in Belgium which, it was held, should be taken into account.
34. Third, it is equally clear that in none of the decided cases has income earned by a family member of the EU national in the host Member State been taken into account where that family member thereby acquired or sought to sustain a right of residence derived from the right of residence of the EU national who is “dependent” upon that income to establish or sustain his own right of residence. In Chen, it was income of the “family member” who sought to derive a right from the EU national but that income was not earned in the host Member State, namely the UK. In Commission v Belgium, the “family member” earned the income in the host member State but did not seek to derive any right of residence from the EU national. As the Tribunal observed in GM and AM (at para [52]):
“What is important about [Commission v Belgium] for our purposes is that the ability (or right) to work of the partner of the EU national and therefore to support the EU national was not itself dependent upon a recognition of that EU national having a right to reside under Directive 90/364. The partner (who was a Belgium national) had a pre-existing right to reside and work in Belgium independently of the EU national. On that basis, it was disproportionate to exclude this legitimate source of income in establishing the EU national’s right of residence. “
35. The EU national’s partner was not seeking to derive any right to reside or work in Belgium from the EU national. She possessed those rights already – and would continue to do so – as a Belgian national herself. There was in that case no element of ‘boot-strapping’ or circularity whereby the right of the family member to reside and work was established only through the EU national whose right was likewise dependent upon the family member working.
36. Fourth, we do not accept Mr Chatwin’s submission based upon paragraph [30] of the Chen decision. As the Tribunal pointed out in GM and AM, the Court’s comment in paragraph [30] must be read in the context of that case where it was argued – but rejected - that only the EU national’s own resources could be taken into account. The Court cannot be taken to have endorsed the view put forward in these appeals that any resources available to the EU national may be taken into account. As the Tribunal in GM and AM noted in para [51] of its determination:
“we have no doubt that there must be some limitations on acceptable sources, for example if the funds are derived from criminal activity or where the relied upon resources are derived from illegal work in breach of domestic law.
37. The same conclusion was reached in the recent decision of the Court of Appeal of W(China) and X(China) v SSHD decided after the hearing before us. The Court concluded that an EU national child had not established she was self-sufficient and therefore had a right of residence under Article 18 EC Treaty and Directive 90/364 where she relied upon income from the employment of her father who was an illegal entrant and not entitled to work in the UK. We are aware that this is the same issue raised in a number of cases currently pending before the AIT to which the decision is directly relevant. The essence of the Court of Appeal’s reasoning is found at paragraph [16] of Buxton LJ’s judgment (with whom Sedley and Dyson LJJ agreed). He said:
““16… As interpreted by the ECJ in Chen, the article 18 right of [the child] and the associated right of her custodians can only be lawfully asserted under the strictly limited conditions imposed by Directive 90/364. Those conditions are pre-conditions not merely to the exercise but also more fundamentally to the existence of the right in any particular case: article 18 stating in terms that "the right" to move and reside is subject to the limitations and conditions laid down in, e.g., Directive 90/364. The right accordingly does not exist if [the child] does not have access to the relevant resources. There is no suggestion that under article 18 the host state is obliged to take positive steps to make resources available to an entering EU citizen: [Counsel for the appellants] understandably drew back from any suggestion that the state would be obliged to provide support for a custodian without resources in the shape, for instance, of disablement benefit. By the same token, the state is not obliged to adjust its domestic law in order to make available to the EU citizen resources that would not otherwise be available to him, so that he can fulfil the pre-condition to the existence in his case of the article 18 right: the right which has to exist before he can require the state to adjust its domestic law in deference to it.”
38. The Court makes clear that the requirement of ‘self-sufficiency’ goes to the “existence” of the EU national’s right: that right and the derivative rights of the parents can only be established if the “strictly limited conditions” imposed by the EU Directives are satisfied. We accept that the Court of Appeal’s decision does not deal explicitly with the question of whether an EU national is entitled to rely upon income derived from lawful employment (or self-employment) of her parents in the UK – the issue which arises in these appeals. However, the passage we have set out above comes close, in our view, to rejecting reliance by an EU national upon any income derived from employment of a family member in the host Member State. The reasoning dismisses the legitimacy of an argument based upon ‘circularity’ whereby family members assert an entitlement (to work) and thereby establish the EU national’s right and then themselves derive a right of residence and to work in the future. That, of course, is the very same argument that was also rejected by the Tribunal in GM and AM.
39. Although not determinative of these appeals, the Tribunal’s decision in GM and AM provides helpful guidance on the approach we should adopt. The facts of that case are similar to the instant appeals. The principal appellant was a French national child living in the UK. Her father, who was a failed asylum-seeker, obtained an offer of a job. He argued that, if allowed to work, he and his daughter would be self-sufficient. As an EU national, she had the right to reside in the UK and, on the basis of Chen, he had a derivative right to reside as her primary carer. He argued that the prohibition on employment and taking it into account in paragraphs 275D and 257C respectively were contrary to EU law. The Tribunal disagreed and concluded that neither the child nor (derivatively) her father had established a right to reside under EU law.
40. In GM and AM, the Tribunal said this at paras [62] and [63]:
“62. The solution may be found in an examination of the underlying purpose that leads Community law to recognise the derivative right of free movement for family members of EU nationals exercising Treaty rights. Those rights, of course, apply to family members even if they are not themselves EU nationals. The real purpose of the right to accompany (or join) and reside with the EU national is that without such a right the EU national could be inhibited from exercising his EU right of free movement and residence. The starting point is that the EU national has a right and therefore all principles of Community law work to avoid difficulties in its exercise. It follow from that that in a typical case the EU national’s right exists independently of the presence of family members in the host country. That was also the situation in Chen. Although the parent/carer had to be in the UK in order for the EU national child to exercise her right of residence, that right existed independently of the presence of the family member. The child’s self-sufficiency was derived from her parents but it would have existed even if they had not been in the UK – it was derived from their business in China. The rationale of Chen is that the presence of the parent/carer enabled the child to exercise the right it undoubtedly – and independently – had.
63. What is being said in this case is quite different. Here, it is said that the parent/carer is entitled to be in the UK and work because only then will the child be self-sufficient and hence establish her EU right of residence. Thus, the family member’s presence in the UK (and right to work) is relied upon not in order to avoid a ‘clog’ or ‘chill’ on the exercise the right of the EU national child but rather in order to create that very right itself – the right from which the family member then seeks to derive his own right to reside as her carer/parent. Only if the parent/carer resides in the UK with the EU national child can it be said that the child has an EU right at all. The argument is then exposed for what it is – entirely circular. Even more problematically, it is a circular argument that begins in the wrong place because it begins with a person who has no right to begin with, unlike in Chen. There is nothing in Court of Justice’s jurisprudence, in particular in Chen, or anything in principle which should cause us to decide that a non-EU family member should be able to reside in the UK with an EU national child (not to allow it to exercise an existing right but rather) in order to establish the right in the first place. Any right of the family member must be derived from an existing right of the EU national which he or she has individually and separately. That is simply not this case.”
41. In our view, the arguments rejected by the Tribunal in this passage are very close – if not quite identical – to the way Mr Chatwin puts his case in these appeals.
42. First, the presence of the child’s parents in the UK is not only necessary for her to exercise her right of residence but also to establish it. This is so whether one looks at the income derived from their current employment or, if permitted despite the Immigration Rules, in the future. The underlying purpose of recognising the derivative rights of family members to accompany or join an EU national exercising Treaty rights in another EU country is not engaged here anymore than it was in GM and AM. In our view, the EU national’s right must be established independently of the presence of the family members in the UK before they may derive any rights from EU law themselves. This, it may be said, is because the right is the right of the EU national. It is an individual right, not a family right (although it has consequences for the family); and it must be established on an individual, not a family basis.
43. Second, we do not see any basis for deciding that income derived from the first and second appellants’ current employment can establish their daughter’s right to reside. The circularity in establishing the child’s rights and then the parents’ rights is no less apparent in these appeals. Here, the child’s self-sufficiency is dependent upon her parents working. They only have a temporary basis for doing so for so long as they have limited leave and are permitted to work. Once that leave runs out, there would be no lawful basis for working. Indeed, it seems to us that it is only because of these applications and subsequent appeals that the leave did not terminate in December 2005 but was continued under s.3C of the Immigration Act 1971. The only basis for their right to work would then have to be derived from EU law. The moment that occurred and they derived a right to reside and - it would have to be said - to continue working, the position would be indistinguishable from that in GM and AM. The circularity would be complete – their right to work would now sustain the child’s right and through her their own derived right would continue.
44. Third, our conclusion accords with a proper understanding of the notion of ‘self-sufficiency’ and the distinction between free movement in reliance upon economic and, alternatively, non-economic rights.
45. An EU national who claims to be self-sufficient is not asserting a right to enter and reside in another EU state on the basis of economic activity in that country. If he were, he would be seeking to enter, for example, as a worker or self-employed person. Rather, he relies upon his resources which exist independently of any economic activity in the host Member state. Once that is established, his family members have a derivative right to accompany or join him. If they did not, the EU national’s right of free movement might be inhibited or effectively denied to him. In addition, the central EU legislative instruments give family members a right to work in that the host Member state. But, their right to work is not a recognition of the right to engage in economic activity per se. Rather, it is simply a reflection of the underlying principle of EU law because otherwise they (and hence the EU national) might be inhibited from moving within the EU if family members were not allowed to carry on, what for them, is an important aspect of their everyday lives. The economic activity of the family members does not establish – nor could it in the context of an EU national worker or self-employed person – the EU national’s right. That arises a priori and independently of any economic activity by the EU national or his family in the host EU country.
46. By contrast, in the Chen-type case the EU national can only establish his right by reliance upon economic activity in the host Member state, not, of course, economic activity by himself but rather by his family members. We see no reason to distort the usual situation simply because the EU national is a child and is dependent upon others for support and, unusually, is already present in the host EU country with his family members rather than seeking to enter it with is family. Here too, the right of free movement based upon self-sufficiency cannot depend upon resources derived from employment engaged in by the EU national or his family members in the UK.
47. It is true that in GM and AM the Tribunal said at a number of points in its determination that it was not concerned with a case where the income relied upon to establish the child’s right was lawfully or independently obtained (see, e.g. paras [52] and [65]). However, that should not, in our view, be taken as anything more than a reminder by the Tribunal that it was not concerned with such a case on the facts before it. The issue in these appeals was not argued before the Tribunal in GM and AM and it cannot be taken as expressing a view on the proper outcome to these appeals.
48. In the result, therefore, the reasoning of the Tribunal in GM and AM is applicable where an EU national child places reliance upon income derived from a parent lawfully working in the UK during a period of limited leave restricted for a specific purpose or, which is not this case, who is on temporary admission and not prohibited from working. In such circumstances, a Member State is entitled to restrict the rights of employment of non-EU nationals, in particular to limit the duration of their permission to work just as it is entitled effectively to prohibit their ability to work (see, W(China) and X(China)). When it does so, that individual cannot derive a right to reside as a “family member” of an EU national because that income cannot be taken into account in order to establish the EU national’s right of residence on a self-sufficient basis.
The ‘prohibition on work’ point
49. We can deal with this point shortly. First, it follows from what we have already decided that the requirement in paragraph 257C(iv) of the Immigration Rules that the “family members” of a Chen-child should be self-sufficient without engaging in employment is entirely consistent with EU law. Second, because the third appellant cannot establish a right of residence based upon her parents’ income, there is no basis upon which the future prohibition on working set out in paragraph 257D of the Immigration Rules can be challenged as unlawful. Perhaps the most obvious basis would be through reliance upon Article 23 of Directive 2004/38, which provides:
“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”
50. This provision does not, of course, apply directly in a Chen-type situation as the parents do not fall within the definition of “family members” in Directive 2004/38. We will, however, assume that it can be applied by analogy in keeping with the approach of the Court of Justice in Chen itself. However, Article 23 only bites so as to confer a right of employment upon the family members of an EU national where they have established a right of residence (see GM and AM at paras [58]-[60] and W(China) and X(China) at para [18]). It is a right derived from their right to reside in the UK. The latter, of course, is precisely what the parents in these appeals have failed to do for the reasons we have already given. It cannot, therefore, have any application to these appeals to assist their claim that the third appellant is self-sufficient. In this respect, the appellants are, therefore, in precisely the same situation as were the appellants in GM and AM. They seek to establish EU rights based upon the parents’ future right to work. As in GM and AM, they cannot do so.
Decision
51. For the forgoing reasons, the immigration judge’s decision was correct in law and the decision to dismiss the appeals stands.
A GRUBB
SENIOR IMMIGRATION JUDGE
Date:
MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 12 September 2006
Promulgated on: 08 December 2006
Before:
Senior Immigration Judge Storey
Senior Immigration Judge Grubb
Between
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr M Chatwin, Counsel instructed by Fernandes Vaz, Solicitors
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
An EU (EEA) national child cannot rely upon income derived from a parent lawfully working in the UK during a period of limited leave restricted to a specific purpose or who is on temporary admission and not prohibited from working in order to establish a right of residence based upon ‘self-sufficiency’. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.
DETERMINATION AND REASONS
1. These reconsiderations concern the joined appeals of an EU national child and her parents. The first and second appellants are married and are nationals of Bangladesh. The third appellant is their daughter who was born in Dublin on 4, November 2001 and so, by virtue of the jus soli rule then applied by the Republic of Ireland to questions of nationality, is a citizen of the Republic of Ireland.
2. On 11 July 2005, applications were made on behalf of the third appellant for a residence permit under EU law and, in the cases of the first and second appellants, for leave to remain as her parents under paragraph 257C of the Immigration Rules (Statement of Changes in Immigration Rules, HC 395). The third appellant claimed a right of residence in the UK as a self-sufficient EU citizen under Article 18 EC Treaty and Directive 90/364. The first and second appellants claimed that they had a derivative right of residence in the UK as the third appellant’s parents and her primary carers.
3. On 13 March 2006, the Secretary of State refused the applications on the basis that he was not satisfied that the appellants would be able to support themselves without recourse to public funds or by taking employment. The latter was prohibited for the first and second appellants by virtue of paragraphs 257C and 257D of the Immigration Rules. The appellants appealed. In a determination promulgated on 11 May 2006, Immigration Judge Turcan dismissed their appeals. They sought reconsiderations which were ordered by a Senior Immigration Judge on 25 May 2006.
The facts
4. The facts of these appeals are not now disputed. The first appellant was given leave to enter the UK as a student on 3 March 1998 and his leave, we are told, was subsequently extended in stages until 31 December 2005. During that time, he studied for the Bar at Northumbria University and was called to the Bar in March 2004. In 2005-2006, he undertook further study for an MBA at the Commonwealth College of Law and Business Studies in London and at the time of the hearing before the immigration judge was about to complete that course.
5. On 21 February 2000, he married the second appellant in Bangladesh and she was given leave to enter the UK on 6 July 2000, we assume as his spouse. The second appellant became pregnant and gave birth to their daughter (the third appellant) in Dublin on 4 November 2001.
6. During their time in the UK, both the first and second appellant have worked. At the hearing before the immigration judge, the evidence was that the first appellant worked part-time for Boots and the second appellant worked as a customer service assistant for Sainsbury’s. There was evidence of their financial position including bank account details. It was accepted by the immigration judge that as a matter of fact their income was enough to make the family self-sufficient in the sense that they did not need to rely upon public funds. It was also accepted that the family were covered by medical insurance through the first appellant’s Boots BUPA Scheme. It was not disputed that the first and second appellants were working lawfully under the terms of their leave as a student and spouse of a student.
7. The immigration judge concluded that the first and second appellants did not have a right to work in the UK which would allow them to sustain the self-sufficiency of the third appellant. Their continued work, as carers of the first appellant, would be prohibited by paragraphs 257C and 257D of the Immigration Rules and those provisions were not contrary to EU law.
Adjournment application
8. At the hearing before us, Mr Gulvin sought an adjournment. He told us that he was not in a position to make submissions on the Home Office’s position on the issue of reliance on lawful income to establish ‘self-sufficiency’ and he wished to obtain instructions from the Home Office’s policy section. Mr Chatwin objected and invited us to continue. Whilst we appreciated Mr Gulvin’s personal difficulties, we did not consider that there had been inadequate time for the respondent to prepare his case for the reconsiderations. It seemed clear to us that the Home Office’s policy is probably crystallised in the prohibitions on employment in paragraphs 257C and 257D. Indeed, in another reconsideration listed before us, the Secretary of State sought reconsideration in an appeal which gave rise to the very same issues and, it is clear from the grounds that that is indeed the Secretary of State’s position. For these reasons, and mindful of the requirements of rule 21 of the 2005 Procedure Rules, we were not satisfied that the appeals could not be justly determined and we refused the adjournment application.
The legal issue in these appeals
9. As we have indicated, the facts are no longer in dispute in these appeals which raise a pure question of law: namely whether an EU national child can establish that she is self-sufficient (and thus has a right of residence in the UK) based upon income derived from the employment of her parents while they are here for a temporary purpose. The appellants claim that the immigration judge erred in law in deciding that the first appellant could not rely on this income. As to her parents, it is said that they derive a right of residence in order to care for her whilst she is exercising her own right to reside in the UK. The appellants rely principally upon the Court of Justice’s landmark decision in Chen and another v SSHD (Case C-200/02) [2005] INLR 1.
10. The Secretary of State contends that the immigration judge was correct. Mr Gulvin submitted that the third appellant could derive no EU right from the current income of her parents. Thus, the prohibition on their future employment found in the immigration rules is lawful and she was not, therefore, self-sufficient. Reliance was placed upon the Tribunal’s recent decision in GM and AM (EU national; establishing self-sufficiency) France [2006] UKAIT 00059.
The relevant EU and domestic legal provisions
11. Throughout this determination we refer to the rights of free movement and residence of EU nationals although the EEA Regulations in fact apply to the slightly broader category of “EEA national” as defined in regulation 2 of the EEA Regulations 2006.
12. As is readily apparent from her circumstances, the third appellant (as a young child) does not rely upon any economic right to move to and reside in the UK as, for example, a worker or self-employed person. Rather, she relies upon the right of free movement and residence of an EU national found in Article 18 of EC Treaty which is in the following terms:
"1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251."
13. As Article 18(1) makes clear, the right to move and reside is subject to limitations and conditions laid down in measures adopted to give it effect. Those measures were originally laid down in EEC Directive 90/364 but were replaced with effect from 30 April 2006 by Directive 2004/38.
14. Article 7(1)(b) of Directive 2004/38 states that:
“All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
…
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during the period of residence and have comprehensive sickness insurance in the host Member State; … “.
15. The Directive further provides that the exercise of the right of residence should not impose an “unreasonable burden” on the social assistance system of the host Member State during an initial period of residence for three months (Recital 10 and Art 14(1)) or during the extended period of residence beyond three months (Recital 16 and Art 14(2)).
16. In addition, Article 7(2) of the Directive confers a right of residence upon certain persons (not themselves EU nationals) who are family members of an EU national who has a right of residence. For present purposes, those family members include direct relatives in the ascending line providing they are dependent upon the EU national (Art 2(2)(d)).
17. Directive 90/364 was transposed into UK law by the Immigration (European Economic Area) Regulations 2000, SI 2000/2326. However, with effect from 30 April 2006, the latter were replaced by the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (the “EEA Regulations 2006”) in order to give effect to Directive 2004/38. The EEA Regulations 2006 take effect retrospectively. Schedule 4, paragraph 5(1) of those Regulations provides that any appeal pending on 30 April 2006 against an EEA decision taken under the 2000 Regulations shall be treated as a pending appeal against a corresponding EEA decision under the EEA Regulations 2006. As a consequence, they are the relevant domestic provisions to be applied by us and the third appellant’s appeal is treated as being an appeal against a refusal to issue a registration certificate.
18. The EEA Regulations 2006 define those EEA nationals who are “qualified persons” and entitled to recognition of their free movement rights. Regulation 6(1) includes within that category “a self-sufficient person”. In turn, Regulation 4(1)(c) states that:
“(c) “self-sufficient person” means a person who has—
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom; ... .”
19. It is this provision which effectively is prayed in aid by the third appellant. The level of resources required is that which is enough to avoid eligibility to social assistance in the UK. Regulation 4(4) states:
“(4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.”
20. Thus, the right of movement and residence is dependent upon establishing (1) self-sufficiency in the sense of sufficient resources to avoid reliance on the social security system; and (2) comprehensive health insurance (see, Ali v SSHD [2006] EWCA Civ 484 and see now, W(China) and X(China) v SSHD [2006] EWCA Civ 1494).
21. In keeping with Directive 2004/38, the EEA Regulations 2006 confer a derivative right of free movement and residence upon certain family members of an EU national exercising a right such as that found in Article 18 EC Treaty. Where that is the case, the whole family (including the family members) must be self-sufficient. Regulation 4(2) requires that the EU national’s “family members” are also covered by comprehensive sickness insurance and the total resources of that individual and his family are adequate to avoid them becoming a burden on the social assistance system. It provides as follows:
“4(2) For the purposes of paragraph (1)(c), where family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person—
(a) the requirement for that person to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if his resources and those of the family members are sufficient to avoid him and the family members becoming such a burden;
(b) the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover.”
22. Apart from spouses (and civil partners), the rights of “family member” apply, for example, to direct ascendants (such as parents or grandparents) of an EU national but only if they are dependent upon that EU national (see, reg 7(1)(c) and Art 2(1)(d) respectively). It is, of course, not suggested in this case that the third appellant’s parents are dependent upon her. Indeed, it is the converse. Thus, the first and second appellants are not directly covered by the Directive or EEA Regulations 2006. Instead, they rely upon the Court of Justice’s decision in Chen.
23. Chen also concerned an EU national child living in the UK who had Irish nationality as a result of being born in Northern Ireland. She lived with her parents who were Chinese nationals. As a result of income derived from her parents’ Chinese business, the child’s mother had sufficient resources to support herself and the child. They also had comprehensive health insurance. As regards the child, the Court of Justice held that she had a right of residence as a self-sufficient person by virtue of Article 18 of the EC treaty and the (then applicable) Directive 90/364. It was not necessary that she should have the resources personally. It was sufficient that there were adequate resources available to her from her mother that made her self-sufficient. As regards her mother (who was her primary carer), the Court recognised that she was also entitled to reside in the UK in order to permit the child to exercise or enjoy its own EU right. The Court of Justice said (at para [45]):
“... a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence ... .”
24. In relation to self-sufficiency, there is no doubt that the Court of Justice required that the child and her carers had adequate resources not to be a burden on the social security system and were covered by medical insurance (see GM and AM, at paras [41]-[42] and W(China) and X(China) v SSHD).
25. Finally, we set out, as relevant to this appeal, paragraphs 257C and 257D of the Immigration Rules which deal with the requirements for the grant of leave to enter or remain as a parent/carer of what might be termed a “Chen child”. It was, of course, under these provisions (particularly para 257C(iv)) that the parents’ applications for leave to remain were refused.
“257C The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child are that the applicant:
(i) is:
(a) the primary carer; or
(b) the parent; or
(c) the sibling,
of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person; and
(ii) is living with the EEA national or is seeking entry to the United Kingdom in order to live with the EEA national; and ….
(iv) can, and will, be maintained and accommodated without taking employment or having recourse to public funds; and ….”
26. Paragraph 257D states that
“Leave to enter or remain is to be subject to a condition prohibiting employment and recourse to public funds.”
Analysis
27. The crucial issue in these appeals is whether the third appellant has established a right to reside in the UK based upon self-sufficiency. If she has, the rights of the first and second appellants follow on the basis of the Chen decision, subject to any applicable restrictions.
28. Mr Chatwin submitted that the appellants are entitled to succeed on the basis of Chen. They are factually self-sufficient based upon the income available to the third appellant’s parents and they have medical insurance coverage. They are not dependent upon public funds and, if allowed to continue working, will remain self-sufficient. Both parents are working lawfully. Mr Chatwin relied upon paragraph [30] of the Chen decision which he said indicates that no restriction can be placed upon the sources of the income relevant to establish self-sufficiency. The Court stated that:
“it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their origin.”
29. He also relied upon the Court of Justice’s decision in Commission v Belgium (Case C-408/03) decided on 23 March 2006 where the Court held that it was wrong to exclude the income of the EU national’s partner in determining whether the EU national was self-sufficient. Further, he referred us to the Tribunal’s decision in GM and AM (especially para [52]) which, he submitted, allowed regard to be had to income derived from parents who have an independent tight to reside and work in the UK. Finally, Mr Chatwin submitted that paragraphs 257C and 257D could not stand under EU law to the extent that they prevented reliance upon future employment in this situation.
30. It seems to us that Mr Chatwin’s submissions break down into two distinct parts. First, the third appellant is argued to be already self-sufficient on the basis of her parents’ income derived from their existing lawful income in the UK. As a result, she has a right of residence in the UK and, derived from that right, so also do her parents as her carers (the ‘lawful income’ point). Second, given the existence of those rights, the third appellant’s parents cannot be prevented from working in order to sustain, it is said, the third appellant’s right (and consequently their own) and to that extent the prohibitions in paragraphs 257C and 257D of the immigration rules are unlawful (the ‘prohibition on work’ point).
The ‘lawful income’ point
31. We begin with a number of preliminary points.
32. First, in establishing ‘self-sufficiency’ there is no doubt that reliance may be placed upon resources from someone other than the EU national himself (Chen – where it was the parents of the EU national child; Commission v Belgium – where it was the partner of the EU national).
33. Second, those resources may at least in some circumstances be income derived from employment or self-employment. It would be unduly restrictive to see ‘self-sufficiency’ as allowing reliance to be placed only on other kinds of resources such as a private income or a pension. In any event, ultimately those may indirectly be derived from employment at some point as in the case of a pension. Thus, in Chen, it was income arising from the employment of the child’s mother by her parents’ company in China which provided the resources to make her and her parents self-sufficient. Likewise, in Commission v Belgium it was the income derived from the EU national partner’s employment in Belgium which, it was held, should be taken into account.
34. Third, it is equally clear that in none of the decided cases has income earned by a family member of the EU national in the host Member State been taken into account where that family member thereby acquired or sought to sustain a right of residence derived from the right of residence of the EU national who is “dependent” upon that income to establish or sustain his own right of residence. In Chen, it was income of the “family member” who sought to derive a right from the EU national but that income was not earned in the host Member State, namely the UK. In Commission v Belgium, the “family member” earned the income in the host member State but did not seek to derive any right of residence from the EU national. As the Tribunal observed in GM and AM (at para [52]):
“What is important about [Commission v Belgium] for our purposes is that the ability (or right) to work of the partner of the EU national and therefore to support the EU national was not itself dependent upon a recognition of that EU national having a right to reside under Directive 90/364. The partner (who was a Belgium national) had a pre-existing right to reside and work in Belgium independently of the EU national. On that basis, it was disproportionate to exclude this legitimate source of income in establishing the EU national’s right of residence. “
35. The EU national’s partner was not seeking to derive any right to reside or work in Belgium from the EU national. She possessed those rights already – and would continue to do so – as a Belgian national herself. There was in that case no element of ‘boot-strapping’ or circularity whereby the right of the family member to reside and work was established only through the EU national whose right was likewise dependent upon the family member working.
36. Fourth, we do not accept Mr Chatwin’s submission based upon paragraph [30] of the Chen decision. As the Tribunal pointed out in GM and AM, the Court’s comment in paragraph [30] must be read in the context of that case where it was argued – but rejected - that only the EU national’s own resources could be taken into account. The Court cannot be taken to have endorsed the view put forward in these appeals that any resources available to the EU national may be taken into account. As the Tribunal in GM and AM noted in para [51] of its determination:
“we have no doubt that there must be some limitations on acceptable sources, for example if the funds are derived from criminal activity or where the relied upon resources are derived from illegal work in breach of domestic law.
37. The same conclusion was reached in the recent decision of the Court of Appeal of W(China) and X(China) v SSHD decided after the hearing before us. The Court concluded that an EU national child had not established she was self-sufficient and therefore had a right of residence under Article 18 EC Treaty and Directive 90/364 where she relied upon income from the employment of her father who was an illegal entrant and not entitled to work in the UK. We are aware that this is the same issue raised in a number of cases currently pending before the AIT to which the decision is directly relevant. The essence of the Court of Appeal’s reasoning is found at paragraph [16] of Buxton LJ’s judgment (with whom Sedley and Dyson LJJ agreed). He said:
““16… As interpreted by the ECJ in Chen, the article 18 right of [the child] and the associated right of her custodians can only be lawfully asserted under the strictly limited conditions imposed by Directive 90/364. Those conditions are pre-conditions not merely to the exercise but also more fundamentally to the existence of the right in any particular case: article 18 stating in terms that "the right" to move and reside is subject to the limitations and conditions laid down in, e.g., Directive 90/364. The right accordingly does not exist if [the child] does not have access to the relevant resources. There is no suggestion that under article 18 the host state is obliged to take positive steps to make resources available to an entering EU citizen: [Counsel for the appellants] understandably drew back from any suggestion that the state would be obliged to provide support for a custodian without resources in the shape, for instance, of disablement benefit. By the same token, the state is not obliged to adjust its domestic law in order to make available to the EU citizen resources that would not otherwise be available to him, so that he can fulfil the pre-condition to the existence in his case of the article 18 right: the right which has to exist before he can require the state to adjust its domestic law in deference to it.”
38. The Court makes clear that the requirement of ‘self-sufficiency’ goes to the “existence” of the EU national’s right: that right and the derivative rights of the parents can only be established if the “strictly limited conditions” imposed by the EU Directives are satisfied. We accept that the Court of Appeal’s decision does not deal explicitly with the question of whether an EU national is entitled to rely upon income derived from lawful employment (or self-employment) of her parents in the UK – the issue which arises in these appeals. However, the passage we have set out above comes close, in our view, to rejecting reliance by an EU national upon any income derived from employment of a family member in the host Member State. The reasoning dismisses the legitimacy of an argument based upon ‘circularity’ whereby family members assert an entitlement (to work) and thereby establish the EU national’s right and then themselves derive a right of residence and to work in the future. That, of course, is the very same argument that was also rejected by the Tribunal in GM and AM.
39. Although not determinative of these appeals, the Tribunal’s decision in GM and AM provides helpful guidance on the approach we should adopt. The facts of that case are similar to the instant appeals. The principal appellant was a French national child living in the UK. Her father, who was a failed asylum-seeker, obtained an offer of a job. He argued that, if allowed to work, he and his daughter would be self-sufficient. As an EU national, she had the right to reside in the UK and, on the basis of Chen, he had a derivative right to reside as her primary carer. He argued that the prohibition on employment and taking it into account in paragraphs 275D and 257C respectively were contrary to EU law. The Tribunal disagreed and concluded that neither the child nor (derivatively) her father had established a right to reside under EU law.
40. In GM and AM, the Tribunal said this at paras [62] and [63]:
“62. The solution may be found in an examination of the underlying purpose that leads Community law to recognise the derivative right of free movement for family members of EU nationals exercising Treaty rights. Those rights, of course, apply to family members even if they are not themselves EU nationals. The real purpose of the right to accompany (or join) and reside with the EU national is that without such a right the EU national could be inhibited from exercising his EU right of free movement and residence. The starting point is that the EU national has a right and therefore all principles of Community law work to avoid difficulties in its exercise. It follow from that that in a typical case the EU national’s right exists independently of the presence of family members in the host country. That was also the situation in Chen. Although the parent/carer had to be in the UK in order for the EU national child to exercise her right of residence, that right existed independently of the presence of the family member. The child’s self-sufficiency was derived from her parents but it would have existed even if they had not been in the UK – it was derived from their business in China. The rationale of Chen is that the presence of the parent/carer enabled the child to exercise the right it undoubtedly – and independently – had.
63. What is being said in this case is quite different. Here, it is said that the parent/carer is entitled to be in the UK and work because only then will the child be self-sufficient and hence establish her EU right of residence. Thus, the family member’s presence in the UK (and right to work) is relied upon not in order to avoid a ‘clog’ or ‘chill’ on the exercise the right of the EU national child but rather in order to create that very right itself – the right from which the family member then seeks to derive his own right to reside as her carer/parent. Only if the parent/carer resides in the UK with the EU national child can it be said that the child has an EU right at all. The argument is then exposed for what it is – entirely circular. Even more problematically, it is a circular argument that begins in the wrong place because it begins with a person who has no right to begin with, unlike in Chen. There is nothing in Court of Justice’s jurisprudence, in particular in Chen, or anything in principle which should cause us to decide that a non-EU family member should be able to reside in the UK with an EU national child (not to allow it to exercise an existing right but rather) in order to establish the right in the first place. Any right of the family member must be derived from an existing right of the EU national which he or she has individually and separately. That is simply not this case.”
41. In our view, the arguments rejected by the Tribunal in this passage are very close – if not quite identical – to the way Mr Chatwin puts his case in these appeals.
42. First, the presence of the child’s parents in the UK is not only necessary for her to exercise her right of residence but also to establish it. This is so whether one looks at the income derived from their current employment or, if permitted despite the Immigration Rules, in the future. The underlying purpose of recognising the derivative rights of family members to accompany or join an EU national exercising Treaty rights in another EU country is not engaged here anymore than it was in GM and AM. In our view, the EU national’s right must be established independently of the presence of the family members in the UK before they may derive any rights from EU law themselves. This, it may be said, is because the right is the right of the EU national. It is an individual right, not a family right (although it has consequences for the family); and it must be established on an individual, not a family basis.
43. Second, we do not see any basis for deciding that income derived from the first and second appellants’ current employment can establish their daughter’s right to reside. The circularity in establishing the child’s rights and then the parents’ rights is no less apparent in these appeals. Here, the child’s self-sufficiency is dependent upon her parents working. They only have a temporary basis for doing so for so long as they have limited leave and are permitted to work. Once that leave runs out, there would be no lawful basis for working. Indeed, it seems to us that it is only because of these applications and subsequent appeals that the leave did not terminate in December 2005 but was continued under s.3C of the Immigration Act 1971. The only basis for their right to work would then have to be derived from EU law. The moment that occurred and they derived a right to reside and - it would have to be said - to continue working, the position would be indistinguishable from that in GM and AM. The circularity would be complete – their right to work would now sustain the child’s right and through her their own derived right would continue.
44. Third, our conclusion accords with a proper understanding of the notion of ‘self-sufficiency’ and the distinction between free movement in reliance upon economic and, alternatively, non-economic rights.
45. An EU national who claims to be self-sufficient is not asserting a right to enter and reside in another EU state on the basis of economic activity in that country. If he were, he would be seeking to enter, for example, as a worker or self-employed person. Rather, he relies upon his resources which exist independently of any economic activity in the host Member state. Once that is established, his family members have a derivative right to accompany or join him. If they did not, the EU national’s right of free movement might be inhibited or effectively denied to him. In addition, the central EU legislative instruments give family members a right to work in that the host Member state. But, their right to work is not a recognition of the right to engage in economic activity per se. Rather, it is simply a reflection of the underlying principle of EU law because otherwise they (and hence the EU national) might be inhibited from moving within the EU if family members were not allowed to carry on, what for them, is an important aspect of their everyday lives. The economic activity of the family members does not establish – nor could it in the context of an EU national worker or self-employed person – the EU national’s right. That arises a priori and independently of any economic activity by the EU national or his family in the host EU country.
46. By contrast, in the Chen-type case the EU national can only establish his right by reliance upon economic activity in the host Member state, not, of course, economic activity by himself but rather by his family members. We see no reason to distort the usual situation simply because the EU national is a child and is dependent upon others for support and, unusually, is already present in the host EU country with his family members rather than seeking to enter it with is family. Here too, the right of free movement based upon self-sufficiency cannot depend upon resources derived from employment engaged in by the EU national or his family members in the UK.
47. It is true that in GM and AM the Tribunal said at a number of points in its determination that it was not concerned with a case where the income relied upon to establish the child’s right was lawfully or independently obtained (see, e.g. paras [52] and [65]). However, that should not, in our view, be taken as anything more than a reminder by the Tribunal that it was not concerned with such a case on the facts before it. The issue in these appeals was not argued before the Tribunal in GM and AM and it cannot be taken as expressing a view on the proper outcome to these appeals.
48. In the result, therefore, the reasoning of the Tribunal in GM and AM is applicable where an EU national child places reliance upon income derived from a parent lawfully working in the UK during a period of limited leave restricted for a specific purpose or, which is not this case, who is on temporary admission and not prohibited from working. In such circumstances, a Member State is entitled to restrict the rights of employment of non-EU nationals, in particular to limit the duration of their permission to work just as it is entitled effectively to prohibit their ability to work (see, W(China) and X(China)). When it does so, that individual cannot derive a right to reside as a “family member” of an EU national because that income cannot be taken into account in order to establish the EU national’s right of residence on a self-sufficient basis.
The ‘prohibition on work’ point
49. We can deal with this point shortly. First, it follows from what we have already decided that the requirement in paragraph 257C(iv) of the Immigration Rules that the “family members” of a Chen-child should be self-sufficient without engaging in employment is entirely consistent with EU law. Second, because the third appellant cannot establish a right of residence based upon her parents’ income, there is no basis upon which the future prohibition on working set out in paragraph 257D of the Immigration Rules can be challenged as unlawful. Perhaps the most obvious basis would be through reliance upon Article 23 of Directive 2004/38, which provides:
“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”
50. This provision does not, of course, apply directly in a Chen-type situation as the parents do not fall within the definition of “family members” in Directive 2004/38. We will, however, assume that it can be applied by analogy in keeping with the approach of the Court of Justice in Chen itself. However, Article 23 only bites so as to confer a right of employment upon the family members of an EU national where they have established a right of residence (see GM and AM at paras [58]-[60] and W(China) and X(China) at para [18]). It is a right derived from their right to reside in the UK. The latter, of course, is precisely what the parents in these appeals have failed to do for the reasons we have already given. It cannot, therefore, have any application to these appeals to assist their claim that the third appellant is self-sufficient. In this respect, the appellants are, therefore, in precisely the same situation as were the appellants in GM and AM. They seek to establish EU rights based upon the parents’ future right to work. As in GM and AM, they cannot do so.
Decision
51. For the forgoing reasons, the immigration judge’s decision was correct in law and the decision to dismiss the appeals stands.
A GRUBB
SENIOR IMMIGRATION JUDGE
Date: