Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45241/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
26 January, 02 March & 12 July 2016
On 6th September 2016

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE DAWSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SUONG TUYET THI TRAN
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Presenting Officer
For the Respondent: Ms J Norman, instructed by Stevens Machi Solicitors

DECISION AND REASONS
1. The issue in this case is whether the refusal by the UK government to provide a derivative residence card to the respondent, a national of Vietnam would deprive her minor daughter [L] of the genuine enjoyment of her right to reside within the European Union as a German national. It is not in dispute that the respondent would be entitled under German law to reside with her daughter in Germany. She objects to doing so. This is because of the unhappy history of her relationships in Germany including that with [L]'s father. The respondent and her daughter currently reside in the United Kingdom. She asserts that if she and [L] are required to return to Germany, she would, instead, take her daughter to Vietnam and thus deprive her of the genuine enjoyment of the substance of her rights attaching to her status as a European Union Citizen. There appears to be no direct authority on the correct approach or assessment to be applied where there is an objection by a third country national primary carer to living in the member state of a EU Citizen child's nationality: certainly none was cited to us.
2. The history relevant to this appeal is as follows. The respondent moved to Germany from Vietnam in 2004. She has two children. The eldest, who was born in 1994, is a university student in Vietnam; the younger, [L], was born in 2006 in Berlin. [L]'s father is a German citizen of Vietnamese origin. The respondent only lived for a brief period with [L]'s father from whom she separated after three months after moving with her daughter out of an immigration centre to live with him in Hamburg. Her next relationship was with a Vietnamese national who was resident in Germany. She remained with him for six months but left because he became violent. They had lived together in Berlin. The respondent's first husband died in Vietnam in 2000. Agents helped the respondent to enter the United Kingdom unlawfully in 2008. [L] moved to Vietnam that year where she remained until 2012. The respondent has lived unlawfully in the United Kingdom since her arrival.
3. The respondent applied for a residence card in August 2014 which was refused on 21 October 2014. She appealed to the First-tier Tribunal. First-tier tribunal Judge Ievins allowed her appeal "on immigration grounds" for reasons given in his decision dated 21 May 2015. He concluded that [L] would be unable to remain in the United Kingdom if the respondent was required to leave, there being no one else to take care of her. He did not accept that the respondent met the requirements of Regulation 15A(2)(b)(iii) or any other of the criteria in Regulation 15A. Nevertheless, he accepted the argument based on Article 20 of the Treaty of the Functioning of the European Union and the case of Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09 and concluded that if the respondent was not entitled to a derivative right of residence in the United Kingdom, in practical terms, [L] would have to leave the European Union. The judge appeared to have proceeded on the basis that because the respondent would be unable to live in Germany lawfully, [L] would be unable to do so herself.
4. The challenge by the Secretary of State to that decision acknowledges that the Zambrano right would be engaged if [L] was forced to leave Germany and move outside the EU if her primary carer was refused residence there. It did not follow that such a right of residence is engaged so as to allow an EU national child to reside anyway in the Union. There was no evidence to show that [L] would not be allowed to reside in Germany with the respondent as her carer. There was no evidence to support such a conclusion that the respondent could not live in Germany lawfully. The respondent had stated she did not want to return to Germany but that was a personal preference and not the same as being unable to return.
5. In granting permission to appeal, First-tier Tribunal Judge Zucker observed that having recognised that the burden of proof was on the respondent, the First-tier Tribunal judge had failed to apply it.
6. We are satisfied that the First-tier Tribunal fell into error. There was no evidential support for the conclusion that the respondent would be unable to live in Germany other than the bare assertion that she could not do so. This error infected his conclusion under Article 20 and accordingly we are satisfied the decision must be set aside and remade. We gave the parties our view on this at the first hearing. We heard evidence at the second hearing and having invited written submissions heard argument at the third hearing when we reserved our decision.
7. There are two preliminary matters which we need to dispose of before turning to the substance of this case. The first relates to the entitlement of the respondent to live with [L] in Germany. Any doubts over that were dispelled at the hearing on 2 March with the production by Mr Tufan of material in response to our direction made at the first hearing for the Home Office to research German law to produce evidence that may be relevant to returning a German national child with a third country national who is the sole carer of that child. James Dennis, third country unit liaison officer for Germany and Austria, explains in his letter dated 10 February 2016 that he had contacted Peter Derst, a representative of Unit 21, responsible for German residence law at the German Federal Office for Migration & Refugees. Herr Derst responded in German and a translation is provided in these terms:
"Dear Mr Dennis
I can provide the following reply to your query:- The German child has a right of residence in the Federal Republic of Germany because of his [sic] German citizenship. Insofar as the child not being resident in the UK and future residence in Germany, the Vietnamese mother has a legal right to a residence permit for Germany (initially as a national visa for entry), when she will take custody of her German child here (# 28 para.1 sentence 1 number 3 of the Residence Act). The assertion that the German child must leave the EU following (the mother's) refusal of the right of residence in the UK is therefore not applicable.
Best regards
By Authority
Peter Derst"
8. A copy of the relevant German legislation is provided together with a web link to an English translation on the Act of the Residence, Economic Activity and Integration of Foreigners in the Federal Territory. This evidence was not challenged by Ms Norman.
9. The second matter relates to Regulation 15A of the Immigration (EEA) Regulations 2006. At the first hearing Ms Norman accepted that she could not rely on a derivative right of residence under that Regulation. This is understandable as [L] is not residing in the United Kingdom as a self sufficient person. Although the respondent has been given permission to work and has been able to demonstrate sufficient support for herself and [L] without recourse to public funds, the absence of comprehensive sickness insurance cover (as opposed to entitlement to access to the NHS) is fatal to the claim. There are several authorities on the point which were reviewed by Arden LJ in Ahmad v SSHD [2014] EWCA Civ 988. We need not take this point any further.
10. We now turn to the live issues to be addressed. Ms Norman's most recent submissions dated 21 March 2016 identify these as follows:
(1) Does the respondent have a right to reside pursuant to Article 20 TFEU (the Zambrano principle)?
(2) What effect so Section 55 BCA 2009, Article 8 ECHR and/or Article 7 of the Charter of Fundamental Rights of the European Union have on the decision?
11. As to (2), Ms Norman confirms the inability of the respondent to rely on Article 8 but nevertheless asserts that she can rely on Article 7 of the Charter with reference to Abdul (Section 55 - Article 24(3) Charter: Nigeria [2016] UKUT 106 (IAC). We begin our consideration however with the first issue. Articles 20 and 21 of the Treaty on the functioning of the European Union ("the Treaty") materially provide:
"Article 20
(1) Citizenship of the union is hereby established. Every person holding a nationality of a Member States shall be a citizen of the EU union. Citizen of the union shall be additional to and not replace national citizenship.
(2) Citizens of the union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States ?
This right shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted there under.
Article 21
(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 the Treaties and by the measures adopted to give them effect ?"
12. These provisions were considered in Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09 where it was held (in the summary of its judgment) that:
"Article 20 TFEU is to be interpreted as meaning that it precludes a member state from refusing a third country national upon whom has minor children, who are European Union citizens are dependant a right of residence in the member state of residence a nationality of those children, and from refusing to grant a work permit to that third country national, insofar as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
13. Ms Norman reminds us in her submissions that in respect of this right there is no requirement to establish that a child is exercising treaty rights; EU citizenship suffices for her carer to derive a right of residence. She argues that if the consequence of a decision to refuse a derivative right of residence as to deprive the EU national of the right to live within the European Union, the appeal must be allowed.
14. The scope of the Zambrano principle was considered by Elias LJ in Harrison & Another v SSHD [2012] EWCA Civ 1736. After a comprehensive view of the relevant authorities he concluded at [63]:
"63. I agree ? that there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the court recognised in Dereci, but that is an entirely distinct area of protection."
Further at [67]
"? I accept that it is a general principle of EU law that conduct which materially impedes the exercise of an EU right is in general forbidden by EU law in precisely the same way as deprivation of the right. But in my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising a right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non-EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU's citizen's rights would have to be protected (save for the possibility of a proportionate deprivation of rights). Accordingly, to that extent the focus is on protecting the substance of the right, that formulation of the principle already provides protection from certain interferences with the enjoyment of the right."
And at [68]
"68. In my judgment, it is also highly pertinent that the CJEU has confirmed in Dereci (Paras 67-68) that the fact that the right to family life is adversely affected, or that the presence of non-EU national is desirable for economic reasons, will not of themselves constitute factors capable of triggering the Zambrano principle. In practice these are the most likely reasons why the right of residence would be rendered less beneficial or enjoyable. If these considerations do not engage this wide principle, it seems to me extremely difficult to identify precisely what will. What level of interference with the right would fall short of de facto compulsion and yet would constitute a form of interference which was more than simply the breakdown of family life or the fact that the EU citizens are financially disadvantaged by the removal of the non EU national family member? The scope for this right to bite would be extremely narrow and in my judgment there would be very real uncertainty as to the nature and scope of the doctrine. That legal uncertainty would itself be inconsistent with fundamental principles of EU law. I do not accept the language of the CJEU in Dereci is deliberately seeking to leave open this grey area where Zambrano may bite."
15. For the sake of completeness and in the light of the second of the two issues identified by Ms Norman, we also refer to the observation by Elias LJ at [69]:
"I do not accept that the recognition in Dereci that Article 7 of the Charter on Fundamental Freedoms may apply assists his case, although I accept that it is not entirely clear why that passage is included in the judgment. It could be that the Court was recognising that the deprivation of the right might be appropriate and proportional in some circumstances; or as Professor Davies' paper suggestion, the Court might have been envisaging that Article 7 could be relevant to the question whether the EU citizen was in fact compelled to follow the non-EU citizen out of the territory of the EU. I do not think the Court was at that point in its judgment envisaging that Article 7 could be relevant to a situation which it had simply not in terms addressed at all."
16. There is nothing in the more recent authorities that have been drawn to our attention to suggest that the test to be applied is different from that analysed in Harrison (Jamaica). We agree with Mr Tufan's submissions that the decision in SSHD v AQ (Nigeria) & ORS [2015] EWCA Civ 250 involved cases with distinctly different facts from those before us involving the deportation of a parent for criminal behaviour. Nevertheless, the observations of Pitchford LJ at [76] are pertinent:
"76. It was a matter for the domestic court to determine whether the mother's deportation would constitute a breach of the UK's obligations towards the child by denying him the substance of his right as an EU citizen (Dereci at paragraph 74 ?). That determination required an examination of the practical effect of deportation (Harrison (Jamaica) at paragraph 63). I accept Mr Payne's submission, which I did not understand Mr Drabble QC to contest, that this question requires no consideration of reasonableness or proportionality: AQ bore the burden of establishing on balance that in practice her son would be compelled to leave EU if she was deported. While I accept that at paragraph 90 the FTT spoke of a reasonable inference that if AQ was deported her son would be taken into care, that conclusion was reached only after setting off on the wrong foot to examine the proportionality of the alternatives?
77. I agree with Mr Drabble QC that the question to be examined by the tribunal was a practical and not a hypothetical one. ? In my view, the domestic tribunal is entitled to examine all the circumstances proved that its focus is upon the practical consequences of deportation. ?"
17. We were also referred to Ahmed (Amos: Zambrano: Reg 15A(3)(c) 2006 EEA Regs) [2013] UKUT 00089. This case involved two German national children whose Pakistan citizen mother had sought residence in the United Kingdom following her divorce from her German national husband. The couple had lived in the United Kingdom with the children. At paragraph [68] the tribunal observed:
"? In the appellant's case, however, there is no suggestion of the children being able to live with the father and Mr Deller [the Home Office Presenting Officer] said that he accepted that it was not realistic to expect that she could live in Germany with her children. He also accepted that for her and her children there was no alternative Union territory location other than the UK. IN our view Mr Deller was right to make that concession. The appellant did not have any immigration status in Germany nor could she rely in Germany on any EU right of residence (to our understanding she would only be entitled to reside in Germany as a matter of EU law if able to show (as clearly she could not) that she was a self-sufficient parent in accordance with the principles set out by the Court of Justice in Chen [2004] ECR 1-9925). Accordingly, in our judgment the appellant is able to rely on her children's Article 20 right of Union citizenship under the Treaty."
18. The evidence we have now seen from Herr Derst clarifies matters and it may well be that had that been before the parties, the concession might not have been made. The reference however to the acceptance that it was "not realistic" to expect that the respondent could live in Germany does however accord with the practical nature of the enquiry identified in Harrison (Jamaica).
19. We were also referred to NA [2016] EWECJ C-115/15 (30 June 2016) on reference from the Court of Appeal in England and Wales. Included in the four questions asked by the referring court for a preliminary ruling by the Court of Justice were the second question:
"Does an EU citizen have an EU right to reside in a host Member State under Articles 20 and 21 TFEU in circumstances where the only State within the EU in which the citizen is entitled to reside is his state of nationality, but there is a finding of fact by a competent tribunal that removal of the citizen from the host Member State to his State of nationality would breach his rights under Article 8 of the [Convention for the Protection of Human Rights and Fundamental Freedoms) or Article 7 of the Charter of Fundamental rights of the EU?"
And the third:
"If the EU citizen in (2) (above) is a child, does the parent having sole care of that child have a derived right of residence in the host Member State if the child would have to accompany the parent on removal of the parent from the host Member State?"
20. The enquiry before the Court was whether a third country national ex spouse was required to demonstrate exercise of treaty rights by their former spouse at the time of divorce. The applicant had been the victim of domestic violence during the marriage and the divorce post-dated the departure of the Union citizen spouse from the Member State. It was concluded that reliance could not be placed on the retention of a right of residence where the commencement of divorce proceedings post-dated the departure of the Union citizen from the Member State concerned. The Court was also concerned with a fourth question: whether a child has a right to reside pursuant to Article 12, if the Union citizen parent who had been employed had ceased to reside in the host Member State before the child entered into education in that State. The Court concluded that Article 12 of Regulation No 1612/78 did not require that the former migrant worker should still reside in a host Member State on the date when school or university began or that the parent should continue to be present throughout the period of attendance at school or university.
21. Specifically in respect of the second and third questions the Court concluded at [81] in its ruling:
"In the light of the foregoing, the answer to the second and third questions is as follows:
Article 20 TFEU must be interpreted as meaning that it does not confer a right of residence in the host Member State either on a minor Union citizen, who has resided since birth in that Member State but is not a national of that State, or on a parent who is a third country national and who has sole custody of that minor, where they qualify for a right of residence in that Member State under a provision of secondary EU law.
Article 21 TFEU must be interpreted as meaning that it confers on a minor Union citizen a right of residence in the host Member State, provided that that citizen satisfies the conditions set out in Article 7(1) of the Directive 2004/38, which it is for the referring court to determine. If so, that same provision allows the parent who is the primary carer of that Union citizen to reside with that citizen in the host Member State."
22. The absence of comprehensive sickness insurance which is a requirement of Article 7(1) reduces the material impact of this decision on the case before us.
23. Accordingly, we now examine the facts of the case before us to see whether [L] will be effectively compelled or forced to give up residence in the European Union and travel outside the Union with her non-EU national mother.
24. The reasons given by the respondent for not wishing to travel to German with [L] relate to her previous adverse experience there and her perception of the difficulties she and her daughter would encounter if living in Germany today. These are summarised at [2] above. The source is two witness statements and the evidence before us on 02 March. The first statement dated 12 May 2015 and thus before the First-tier Tribunal refers to the respondent's two children. The respondent moved to Germany in 2004 where she lived in an immigration holding centre in Berlin for two years although she was free to come and go. She became pregnant and gave birth to [L] whilst at centre, and then moved to Hamburg to live with [L]'s father, from whom she separated after three months. After living as a single mother the respondent met her second partner who was also of Vietnamese origin with whom she lived for about six months. He became very violent. Police intervention was ineffective. It is not clear when the couple met, however, the respondent decided in 2008 to make her way to the United Kingdom and dispatched [L] to Vietnam to stay with a friend.
25. The respondent also explains in her first statement that [L]'s father was a gambler and an alcoholic and had no fixed abode in Germany. He last saw [L] when she was three months old. [L] had lived in Vietnam with her friend. The respondent's first husband had died in Vietnam in 2000 and so her first daughter had lived with his parents. The respondent explains that she did not wish to go back to Germany as she had had a very hard life there. She has never claimed benefits in the United Kingdom and believes that she can work to support herself and her children.
26. In her second statement dated 1 March 2013, the respondent explains that her daughter is in full time education at a primary school in London where she is doing well and where she had been since September 2012. [L]'s father is described as a very violent man who used to physically abuse the respondent and in this respect also, the police were not effective in protecting her. He had threatened the respondent's life and thus her decision to flee. The second statement makes no reference to the second partner. The respondent explains that since coming to the United Kingdom she had had no contact with [L]'s father and did not know his whereabouts. Specifically in respect of potential return to Germany, the respondent states:
"I will not return to Germany and I will not take my daughter back to Germany if my appeal to live in the UK were to be refused. I will not allow anyone to take my daughter back to Germany. If my current appeal were to be refused, I will return to Vietnam with my daughter. I have no home or income in Vietnam but at least, I have a friend and a few family members in Vietnam to help and protect me and my daughter there. We had no protection in Germany.
I am a Vietnamese national and I speak only Vietnamese language. I do not speak German and my daughter does not speak German. My daughter speaks English and Vietnamese. She, in fact, lived and attended nursery in Vietnam from 2008 until 2012 when I brought her to the UK. She is doing very well at school here, but we will have no other choice but to return to Vietnam if my appeal fails. My life in Germany was horrible and I will not return to that kind of life again. I have therefore decided that I will take my daughter with me and we will both return to live in Vietnam if my appeal to live with her in the UK fails."
27. Nothing new of a material nature emerged in the course of the answers given by the respondent at the hearing. When asked about why she could not live in Munich, Berlin or Stuttgart, she responded somewhat confusingly that [L]'s father had been in Hamburg but had moved to Berlin so she had to go away. When it was suggested that there were big cities in Germany where she could live away from Hamburg or Berlin, her response was that she did not know anyone there. The respondent confirmed that she does not currently know where [L]'s father lives.
28. It is evident to us that the respondent has set her face against living again in Germany. Although we take account of her unfortunate experiences, the respondent's relationships occurred over some eight years ago. There has been no contact since. We find that her concerns are not objectively justified. Even if by some coincidence they were to meet, which would be very unlikely if the respondent lived away from Hamburg or Berlin, the passage of time alone is likely to have reduced the intensity of negative feelings and hostility. For these reasons, we do not consider her previous experience to constitute an impediment to her return. It is a matter purely of her choice.
29. We readily accept that the respondent will have become accustomed to life in the United Kingdom as will her daughter who has had the benefit of over three year's education here. We see no reason however why the respondent would be unable to obtain employment in Germany as she was successfully able to do so in the United Kingdom. Similarly, we do not see any reason why [L] will be unable to adapt again to a new life in Germany; she is of an age where it will be possible for her to acquire German and we have no doubt that the authorities will enable her to settle into that country with a sense of security and place.
30. None of the factors relied on by the respondent persuades us that there would be such diminution in quality of life or a particular standard of living in Germany that in practice rules out [L]'s country of nationality as a place where the family can live.
31. Ms Norman argues that the practical effect of the respondent being refused a residence card would mean that she would leave Europe and go to Vietnam taking [L] with her. The factors that militate against return to Germany are not factors which would compel such a course. The rights in play are not matters that are a function of choice but are driven by the practical effect of factors that may or may not undermine those rights. Accordingly, we are not persuaded that a refusal of a derivative right of residence to the respondent would deprive [L] of the genuine enjoyment of the substance of her rights as an EU citizen. The only thing that may deprive [L] of those rights is her mother's decision to take [L] out of the Union, a decision which, as we have said, would not be based on any practical necessity.
32. We turn to the second issue, in particular Article 7 of the Charter and Section 55. The matters relied on Ms Norman in support of this aspect of the claim mirror those we had regard to in deciding whether [L] would be deprived of the genuine enjoyment of her rights as an EU citizen. The Article 7 factors are almost identical in terms as acknowledged by Ms Norman to Article 8. Application of the Zambrano principles does not include matters of reasonableness or proportionality. These do not arise at this stage since the decision under challenge is solely that of refusal to issue a residence card to the respondent. In the event that the Secretary of State decides to remove the respondent, that will be the opportunity for those factors to be addressed.
33. We have set aside the decision of the First-tier Tribunal for error of law and we remake that decision. We dismiss the appeal by the respondent against the decision to refuse her a residence card.

Signed Date: 05 September 2016

Upper Tribunal Judge Dawson