Gm and Am (Eu National; Establishing Self-Sufficiency)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeSENIOR IMMIGRATION JUDGE
Judgment Date10 Jul 2006
Neutral Citation[2006] UKAIT 59

[2006] UKAIT 59

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge McGeachy

Senior Immigration Judge Grubb

Between
GM and AM
Appellants
and
The Secretary of State for the Home Departament
Respondent
Representation:

For the Appellants: Ms N Rogers, Counsel instructed by Irving & Co, Solicitors

For the Respondent: Ms K Lonsdale, Home Office Presenting Officer

GM and AM (EU national; establishing self-sufficiency) France

An EU national child cannot establish a right of residence based upon self-sufficiency where the resources relied upon would come from the employment of a non-EU national parent/carer who has no independent right to be in or work in the UK. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.

DETERMINATION AND REASONS
1

The first appellant was born on 27 September 1996 and is a citizen of France. The second appellant is her father. He was born on 3 July 1967 and is a citizen of the Republic of Congo.

2

The second appellant met the first appellant's mother, a French national in the Congo in approximately 1981. They had two children, including the first appellant. In April 1999, the first appellant's mother moved to France because, it would seem, of her health. The second appellant remained in the Congo caring for his daughter. However, in June 1999, he also left the Congo, it is claimed, because of the troubles there. The first appellant remained in the Congo. The second appellant says that he lived in the Central African Republic and he lost contact with his daughter. In January 2001, he came to the UK and claimed asylum. His claim for asylum was subsequently dismissed and he exhausted his rights of appeal. He has remained in the UK since that time.

3

In March 2001 the second appellant arranged for the first appellant to come to the UK from the Congo. When here, she began attending primary school where she has remained and is looked after by her father, the second appellant. We were told that neither appellant has any real contact with the first appellant's mother who, it would appear from the second appellant's statement, is now living in New Caledonia where she was born. Because of his immigration status, the second appellant is prohibited from working and both he and his daughter are dependent upon NASS funds which he has received since his arrival in the UK.

4

In March 2004, applications were made on behalf of the appellants for an EU residence permit and residence document respectively, based upon the first appellant's claimed right under EU law to reside in the UK as a student at school and her father's concomitant right to reside in the UK as her parent/carer. On 11 March 2004, the Secretary of State refused the applications. The appellants appealed against these EEA decisions under regulation 29 of the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (as amended).

5

In a determination promulgated on 15 September 2005, Immigration Judge Pitt dismissed the appeals concluding that the first appellant had failed to establish an EU right to reside as she was not ‘self-sufficient’. Her father was prohibited from working and they were both dependent upon public funds in the UK. Consequently, her father also had no right to reside as her parent/carer. In addition, the immigration judge dismissed the appeals under Article 8 of the ECHR. The immigration judge saw no reason why the appellants' could not return to the Republic of Congo (which she inadvertently referred to as the Democratic Republic of Congo) and maintain their family life there.

6

The appellants sought, and were granted, a reconsideration of their appeals under s 103A of the Nationality, Immigration and Asylum Act 2002. No challenge was brought to the judge's decision on Article 8. The sole issue was their respective EU right to reside in the UK.

The error of law
7

Ms Nicola Rogers, who represented the appellants, argued both in the grounds of review and in her oral and written submissions to us, that the Immigration Judge erred materially in law and therefore her decision could not stand for three reasons.

8

First, the Immigration Judge's decision was fundamentally unfair. At the heart of the appellants' case was that they were ‘self-sufficient’ because the second appellant had an offer of a job which he would take if permitted by the Secretary of State to work. At the hearing it was accepted by the Immigration Judge that there was no dispute as to the primary facts of the case. On this basis, it was agreed that the second appellant need not give evidence. Yet, in her determination the Immigration Judge doubted the veracity of the evidence before her, particularly in relation to the offer of employment. The appellants were, thereby, unfairly deprived of an opportunity to deal with the Immigration Judge's doubts. Second, the Immigration Judge failed to give proper reasons why she had concluded that even if the second appellant could work, there would be insufficient resources to make the appellants self-sufficient. Third, the Immigration Judge was wrong to conclude that the first appellant (and through her the second appellant) did not have an EU right to reside in the United Kingdom as a student or self-sufficient person.

9

We will take the first and second issues together as they are closely related. Both arise from the Immigration Judge's treatment in paragraphs [16] to [18] of her determination of a central piece of evidence from the appellants' perspective, namely a letter from Dankif Limited dated 15 July 2005 offering the second appellant a job as a computer engineer once he had obtained a work permit. Ms Lonsdale, who represented the Secretary of State, acknowledged that the factual basis of the appellants' claims was not disputed before the Immigration Judge or indeed before us. We accept that was the position before the Immigration Judge and, for that reason, the second appellant was not called to give evidence. In those circumstances, the Immigration Judge was wrong in paragraph [16] of her determination to go behind the position accepted by the parties, and the Immigration Judge herself, at the hearing and to question the genuineness of the job offer. In the circumstances, it had to be taken at face value. Thereby, the appellants were deprived of the opportunity to deal with a matter that was an important aspect of the appellants' cases.

10

Further, the Immigration Judge concluded that even if the second appellant worked, he would not be able to support himself and his daughter so as to be ‘self-sufficient’. Ms Rogers takes issue with this and submits that in reaching such a conclusion the Immigration Judge could not have properly taken account of all the evidence before her. The nature of the job offer and the evidence before the Immigration Judge of the second appellant's qualifications and experience in the computer field made the conclusion untenable. Ms Rogers' submission comes close to asserting a factual, rather than, a legal error. We must be cautious not to elevate mere factual errors into legal ones. The Immigration Judge was required to take the job offer as a computer engineer at face value; she also had a number of documents relating to the second appellant's previous experience and qualifications before her (see pp 32–40 of appellant's appeal bundle); and finally the Immigration Judge had evidence of the remuneration for work of the type contemplated by the second appellant (pp 52–65). Taking all this evidence into account the Immigration Judge could not properly conclude that the second appellant — if he worked as claimed – would not be able to support himself and his daughter and to purchase health insurance. Her conclusion is “demonstrably erroneous or baseless, not simply debatable; and … potentially determinative” ( per Sedley LJ in Krasniqi v SSHD [2006] EWCA Civ 391 at paragraph [13]). For these cumulative reasons, we have concluded that the judge erred in law.

11

The Immigration Judge's decision can only not stand, however, if her error was “material” to the decision (rule 31( 2), 2005 Procedure Rules). That issue depends upon the third basis upon which Ms Rogers put the appellants' cases. Does the first appellant (and also the second appellant by derivation) have a right to reside in the UK by virtue of EU law? If the answer to that question is ‘no’, then the Immigration Judge's error of law was not material as the appeals were bound to fail. In addressing that issue, we indicated at the hearing that the Tribunal would proceed on the basis of the accepted evidence, in particular that the second appellant has a job offer which he will be able to take up if permitted to by the Secretary of State and which would make the appellants “self-sufficient” for the purposes of their EU rights.

The right of residence under Article 18, EC Treaty and Directive 90/364
12

Ms Rogers provided us with a detailed and helpful skeleton argument together with a bundle of authorities in the Court of Justice. The essence of the appellants' case is as follows. The first appellant is a French national in the UK. She is a student at a state primary school. As such, she has an EU right to reside in the UK providing that she is self-sufficient. Ms Rogers submitted that the first appellant's right was derived from Article 18 EC Treaty and Directive 90/364. The second appellant, as her parent/carer, also had a derived right to remain with her in order that she may effectively exercise her own EU right. He too has to be self-sufficient. For the second appellant's right, Ms Rogers relied upon the decisions of the Court of Justice in Baumbast and R v SSHD (Case C-413/99) [2003] INLR 1 and Chen and another v SSHD (Case C-200/02) [2005] INLR 1.

13

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