Error of Law Decision by Upper Tribunal Judge P Lane: [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane,Peter Lane,Storey,P Lane UTJ,Storey UTJ |
| Judgment Date | 28 March 2013 |
| Neutral Citation | [2013] UKUT 178 (IAC) |
| Docket Number | CASE NOS: IA/24623/24617/24620/24621/2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 March 2013 |
[2013] UKUT 178 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Peter Lane
For the Appellant/SSHD: Mr D Hayes, Home Office Presenting Officer
For the Respondents/Claimants: Mr S Techakounte (fourth Claimant) in person
Seye (Chen children; employment)
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(1) It is clear that income from illegal employment in the host Member State on the part of a parent of a “Chen” child (Case c-200/02 Chen [2004] ECR I-9925) cannot create self-sufficiency for that child ( W (China) and X (China) [2006] EWCA Civ 1494).
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(2) The proposition in MA & Others (EU national: self-sufficiency; lawful employment) [2006] UKAIT 00090 and ER and Others (EU national; self-sufficiency; illegal employment) [2006] UKAIT 00096 that even lawful employment cannot create such self-sufficiency, where the parent is on limited leave or temporary admission, must be regarded as doubtful, in the light of Metock and Others [2008] EUECJ C-127/08 and Liu and Ors v SSHD [2007] EWCA Civ 1275.
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(3) It is, however, part of the binding ratio in Liu that lawful employment undertaken by a parent whose leave has been extended under section 3C of the Immigration Act 1971 cannot create self sufficiency for the “Chen” child.
The subject of this appeal is the determination by First-tier Tribunal Judge Omotosho dated 7 November 2011 allowing the appeals of the four respondents (hereafter claimants) against the decision of the appellant (hereafter the SSHD) made on 23 June 2011 refusing to grant them residence documents as confirmation of their right of residence under European Union law. This followed the application for such documents made on their behalf by their then solicitors on 21 December 2010 and 5 February 2011.
It is not in dispute that the first claimant was born in January 2006 and is a French national and that the other three claimants, his mother (born in August 1976), his half-sibling (born in November 2008) and his step father (born in February 1974), are nationals of Cameroon. The first claimant was the issue of a relationship between his mother and a French national, which broke down some time after his birth. The second claimant subsequently met the fourth claimant and they began a relationship. They have not married but it is not in dispute that they are in a stable family relationship. The third claimant, born in November 2008, is their issue. The second claimant first entered the UK in November 2006 as a missionary and at the date of application she still had limited leave to remain in the UK as a missionary. The fourth claimant's date of arrival in the UK is unclear but he has been unable to show he has ever had lawful status in the UK.
In a decision sent on 11 April 2012 Upper Tribunal Judge Peter Lane found that the First-tier Tribunal judge had materially erred in law and that her decision was to be set-aside: see Annex. By virtue of that set aside our task in this appeal is to re-make the decisions and in that context we have to decide whether the claimants meet the requirements of the relevant legal provisions as at the date of hearing.
We should mention one procedural matter. On 22 December 2012 the claimants wrote requesting an adjournment. They said they needed to instruct new representatives.
On 28 December 2012 an Upper Tribunal Judge refused that request in writing. On the day of the hearing before us only the fourth claimant was in attendance. He confirmed that although the claimants still desired an adjournment he was ready to proceed with the case and to do so on behalf of all four claimants. In the light of the fact that notice of hearing was sent to the parties on 5 December 2012 and the claimants had left it until a very few days before the listed date, we considered that it remained the case that no good reason had been given why this matter should be further adjourned.
We made clear to the fourth claimant that we would do our best to assist him in presenting his case, particularly bearing in mind the legal complexities of some of the issues it raised. We are grateful to Mr Hayes in assisting with this process, by being prepared to respond to a number of questions we put to him as to matters of legal interpretation. We do not propose to set out a summary of either his submissions or those of the fourth claimant, as we have found it possible to draw on them where relevant in the course of our subsequent analysis set out below.
These appeals are all about the ambit of the Chen case (C-200/02) [2004] ECR I-9925 in the light of subsequent UK case law. There are many strands to this case but after having heard from Mr Hayes it is clear the SSHD accepts that if the first claimant is a self-sufficient person within the meaning of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations), then both his appeal and that of his mother (the second claimant) and his half-sister (the third claimant) must succeed.
Whilst Mr Hayes' submission in respect of the fourth claimant was that he did not have a right of appeal, Mr Hayes accepted that in practical terms there was no question that, if the SSHD accepted the first claimant was a self-sufficient person, she would proceed to recognise that the fourth claimant also had a right of residence. In addition to the issue of whether the fourth claimant had a right of appeal, we would observe that there is also the apparent difficulty in him being able to bring himself within the relevant legal provisions: the fact that he is not the natural father of the first claimant would appear to preclude him from the benefit of regulation 15A (see 15A(7) of the 2006 EEA Regulations, although it is arguable that Court of Justice jurisprudence would not exclude a de facto parent from the benefit of the principles established in the Chen case just because he was not a natural parent or in a married relationship with the second claimant: see O, S and L C-357/11, 6 December 2012). For reasons that will become apparent, we do not need to resolve these issues but will proceed for convenience only to continue to describe Mr Techakounte as the fourth claimant.
Whilst all hinges, therefore, on whether the first claimant is a self-sufficient person, it is convenient to set out why, if he is, he and the second and third claimants must succeed in their appeals. And to do that it will assist understanding if we identify the relevant legal provisions. The provisions of the 2006 EEA Regulations are as amended with effect from 16 July 2012 by the Immigration (European Economic Area) Amendment Regulations 2012.
Article 7 of Directive 2004/38/EEC provides 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 their period of residence and have comprehensive sickness insurance cover in the host Member State; …”
So far as is relevant to these appeals, the 2006 EEA Regulations contain the following provisions:
“ 4.-
(1) In these Regulations –
(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;
(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.
(3) For the purposes of paragraph (1)(d), 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, the requirement for that person to assure the Secretary of State that he has 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 he assures the Secretary of State that his resources and those of the family members are sufficient to avoid him and the family members becoming such a burden.
(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 -
(a) 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; or
(b) paragraph (a) does not apply but, taking into account the personal situation of the person concerned and, where applicable, any family members, it appears to the decision maker that the resources of the person or persons concerned should be regarded as sufficient.
6.-
(1) In these Regulations “qualified person” means a person who is an EEA national and in the United Kingdom as-
…(d) a...
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