ER and Others (EU national; self-sufficiency; illegal employment)
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE |
| Judgment Date | 18 December 2006 |
| Neutral Citation | [2006] UKAIT 96 |
| Court | Asylum and Immigration Tribunal |
| Date | 18 December 2006 |
[2006] UKAIT 96
ASYLUM AND IMMIGRATION TRIBUNAL
The Immigration Acts
Senior Immigration Judge Grubb
Senior Immigration Judge Southern
For the Appellant: Mr B Cox, Counsel of the Law Centre (NI)
For the Respondent: Mr A Payne, Counsel instructed by the Treasury Solicitor
ER and Others (EU national; self-sufficiency; illegal employment) Ireland
An EU (EEA) national child cannot establish a right of residence based upon self-sufficiency where the resources relied upon are derived from a parent's employment or self-employed when there is no lawful basis for that parent's residence or employment (or self-employment) in the UK. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.
This reconsideration concerns the appeal of an EU national child, his parents and sister each of whom claims a right of residence in the United Kingdom under EU law. The first and fourth appellants are married and are nationals of the Philippines (the mother and father). The third appellant is their son who was born in Northern Ireland on 13 May 2004 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. The second appellant is the daughter and sister respectively of the other appellants and is also a citizen of the Philippines.
The facts are as follows and do not appear to be a matter of dispute. The family is from the Philippines. The first appellant (the mother) was issued with a work permit in Manila on 23 July 2002 and entered the United Kingdom on 30 July 200She took up employment as a senior care assistant with a private nursing home (Strathearn Court Nursing Home) in Belfast, Northern Ireland which was owned by a company called Four Seasons Health Care Ltd. On 18 August 2003, the fourth appellant (the father) and the second appellant (their daughter) came to live with her in Belfast. On 6 September 2003, her husband also began to work for Four Seasons.
On 13 May 2004, the third appellant — the son of the first and fourth appellants — was born in the Ulster Hospital in Dundonald. As a result, he is an Irish national and he was issued with a passport by the Republic of Ireland on 3 July 2004.
The mother's leave to remain and work permit was due to expire in July 200The same is also true for the father. An extension was sought but it seems that all did not go smoothly and her leave and work permit were not renewed. From the end of July 2004 (the precise date is not clear from the papers), the appellants have been in the UK without leave. The mother was told by her employers that she would have to return to the Philippines. However, the mother and father continued to be employed by Four Seasons and that was the situation at the date of the Secretary of State's decision and has remained so ever since.
On 16 August 2005, an application was made on behalf of the third appellant for a residence permit under EU law. He claimed a right of residence in the UK under Article 18 EC Treaty and Directive 90/364 as a self-sufficient EU citizen. Applications were also made on behalf of his parents and sister for leave to remain as his family members under paragraph 257C of the Immigration Rules ( Statement of Changes in Immigration Rules, HC 395).
On 13 January 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 being prohibited for the parents by virtue of paragraphs 257C and 257D of the Immigration Rules. The appellants appealed. In a determination promulgated on 17 July 2006, Immigration Judge S Gillespie dismissed the appeals. The appellants sought reconsideration which was ordered by a Senior Immigration Judge on 31 July 2006.
We begin with the principal EU and domestic legal provisions that govern this appeal. These are fully set out in the Tribunal's decision in MA (EU national; self-sufficiency, lawful employment) Bangladesh [2006] UKAIT 00090 whose text we gratefully adopt here. As in that case, 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.
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, he 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.”
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.
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; …”.
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)).
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)). Likewise, the Directive makes provision for other family members, for example siblings but again only providing they are or were dependent upon, or members of the household of, the EU national in another EU country (Art 3(2)).
Directive 90/364 was transposed into UK law by the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (the “EEA Regulations 2000”). 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.
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) of the EEA Regulations 2006 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; ….”
It is this provision which is relied upon 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.”
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) that comprehensive health insurance is in place for the whole family (see, Ali v SSHD [2006] EWCA Civ 484 and now, W(China) and X(China) v SSHD [2006] EWCA Civ 1494).
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....
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