Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40137/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14th July 2014
On 05th August 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

SI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr Whitwell, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant was born on 1st August 1973 and is a citizen of the Union of the Comoro Islands and is female. She appealed against the refusal of her application for a residence card as confirmation of the right to reside in the UK as the family member of an EEA national exercising treaty rights in the United Kingdom. The respondent's decision letter of 15th July 2013.
2. The Refusal from the respondent explained that the appellant's partner, AM, a French national was at that time working in Switzerland for Societe Generale and providing support for the appellant and his children whilst he lived and worked there. The appellant's EEA sponsor had not therefore provided evidence he was employed in the United Kingdom and thus exercising treaty rights in accordance with Regulation 6 of the 2006 Regulations.
3. The respondent also considered the judgment and ruling given by the Court of Justice in the European Union (ECJ) in the case of Chen ECJ C200/02 where it was decided that an EEA national child who held sickness insurance would have a right to reside in the UK with the primary carer provided there was sufficient resources to ensure that the child did not become a burden on public funds. The ruling did not state that the EEA national child's primary carer would have a right to reside as a family member defined in Article 2 of Directive 2004/38/EC.
4. The respondent considered the terms of Regulation 15A of the Immigration (European Economic Area) Amendment Regulations 2012 and decided the appellant had failed to show evidence that she held sufficient funds to avoid becoming a burden upon public funds or any funds derived from her partner's employment and had failed to provide fully comprehensive medical insurance cover which is required for an application made under the Chen ruling.
5. The appellant provided that in her grounds of appeal that her two children were French nationals and her son M suffered from autism and she was here to support her child so that he could attend a school which dealt with his medical condition because there were no facilities available in France.
6. The appeal came before First-tier Tribunal Judge Traynor, who heard the appeal on 13th February 2014, dismissed the appeal in a promulgation dated 10th March 2014 under the EEA Regulations and on human rights grounds.
Application for Permission to Appeal
7. The appellant made an application for permission to appeal referring to the case of Zambrano C-34/09 whereupon she stated that they had healthcare insurance in France and that "I did not know that I should take out a contract in the United Kingdom and since 18th February 2014 I can confirm that we have for my two children and me an insurance cover from AXA PPP Healthcare". She stated that the children could not be separated from the mother and the children did not wish to be removed from their school because daughter "feels good here".
8. The appellant stated that she was in the UK for the education of her children particularly her autistic son because there were not enough schools for autistic children in France. M had evolved considerable psychologically, physically and on language because he was well supported by qualified staff. They could not return to France.
9. Permission to appeal was granted by Judge Astle on 12th May 2014 on the basis that it was arguable that the judge erred in his consideration of requirement for medical insurance.
The Hearing
10. At the hearing the appellant confirmed that at the time of the hearing before the First Tier Tribunal, and as it was recorded by the judge at paragraph 19 of his determination, she and her children did not have any private medical insurance and had not taken out any health insurance policy whilst in the United Kingdom. She only held health insurance in France under the French Mutuelle Healthcare Cover and she was unaware whether this would provide healthcare cover in the UK.
11. Mr Whitwell submitted that the appellant could not succeed under Chen and in particular the partner continued to work in Switzerland.
Conclusions
12. The judge outlined the appellant's case in detail between paragraphs 17 and 26 of his determination and considered whether she was entitled to a residence card either in accordance with her partner's qualifications as a worker under the terms of Regulation 6 or upon a derivative basis in accordance with her children's treaty rights. The judge recorded that in his oral testimony Mr AM the EEA national accepted he was not working in the United Kingdom and that he continued to live in France and worked in Switzerland. The judge accurately found that he was not a person who was present in the United Kingdom either as a worker or as a self-employed person exercising treaty rights and that he has not registered as a jobseeker. This is a requirement of Regulation 6 and he was found not to be exercising treaty rights.
13. Indeed Regulation 15A of the Immigration (European Economic Area) Regulations 2006 which commenced on 16th July 2012 includes the provision within the Regulations for Chen cases and a child will have a right of residence in a Member State where that child is
(a) an EEA national which the children in this case were as French nationals;
(b) hold sufficient resources to prevent them and their primary carer becoming a burden on the social assistance system of the host Member State which presupposing the father supplies them with income is the case, but
(c) hold comprehensive sickness insurance.
14. As indicated by the judge and recorded at paragraph 19 and 24 there was no actual evidence before the judge that there was private medical insurance and indeed the a contradiction between the appellant and her husband's evidence was recoded at paragraphs 19 and 24 whereby the appellant stated that she did not have private healthcare and the husband stated that he did. The matter of health insurance was raised in the Reasons for Refusal letter from the respondent and thus the judge was entitled to take this matter into account and did so fairly.
15. Ahmad v SSHD [2014] EWCA Civ 988 recites Sullivan LJ in Kamau (Kenya) [2010] EWCA Civ 1302 'the requirement that there be comprehensive sickness insurance cover is not a mere formality' ? 'it is an integral part of the concept of self sufficiency under the Regulations' and 'a person who has to rely on the United Kingdom's National Health Service is no more self-sufficient than a person whose resourced are inadequate so that he may become a burden on the United Kingdom's social assistance'.
16. There was no indication that the father had ever worked in the UK and thus exercised treaty rights and thus that the children had even established their education in the United Kingdom whilst the father was exercising his rights in the UK.
17. In the circumstances I find that there can be no error of law by the judge in relation to the finding on the medical health insurance.
18. The judge cited MF (Article 8 new Rules) Nigeria and Gulshan v Secretary of State for the Home Department [2013] UKUT 00640 whereby if there are arguably good grounds for granting leave to remain outside the Rules is it necessary for Article 8 purposes to consider whether there were compelling circumstances not sufficiently recognised under the Rules. Even if Gulshan does not apply to EEA cases the judge also considered Razgar v SSHD (2004) UKHL and assessed the case on that basis with reference to Huang v SSHD (2005) EWCA Civ 105.
19. The judge recorded at paragraph 33 that the respondent's decision did not amount to one which sought to enforce removal and although referred to briefly he did consider the appellant's human rights and the children's best interests in substance at paragraph 33 and 34. He confirmed that the children would not be separated from their parent and that there was nothing to prevent the appellant from returning to France with her children and establishing her son in a school equivalent to that which he was presently enrolled. The judge recorded specifically
"She has provided no evidence to show that such educational facilities are not available in France and I would be very surprised if there none. Where the education of the children appears to be the only issue that would be affected as a consequence of the decision then I find that where educational facilities are available in France it would be neither unreasonable nor disproportionate to expect the appellant to return there. There is no reason where her children speak French as their first language and her son has made significant progress in his development why they cannot be reintegrated into the French education system."
20. I find that the judge has made no finding that there are arguably good grounds to consider this matter outside the Immigration Rules and has considered the matter of proportionality in respect of Article 8. I therefore find there is no error of law and the decision shall stand.

Signed Date 4th August 2014

Deputy Upper Tribunal Judge Rimington