Gm and Am (Eu National-Establishing Self-Sufficiency)
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 2006 |
| Neutral Citation | [2006] UKIAT 59 |
| Date | 10 July 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
C M G Ockelton, Deputy President, McGeachy SIJ and Grubb SIJ
Representation
Ms Nicola Rogers instructed by Irving & Co, for the Claimants;
Ms K Lonsdale, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
Ali v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 484; [2006] Imm AR 532
Baumbast v Secretary of State for the Home Department Case C–413/99, ECJ; [2003] INLR 1
Belgium v Humbel Case C–263/86, ECJ; [1988] ECR 5365
Chen and Zhu v Secretary of State for the Home Department Case C–200/02, ECJ; [2005] INLR 1
Commission of the European Communities v Belgium Case C–408/03, ECJ
Commission of the European Communities v Italy Case C–424/98, ECJ; [2000] ECR 1–4001
D'Hoop v Office national de l'emploi Case C–224/98, ECJ; [2002] ECR I–6191
Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve Case C–184/99, ECJ; [2001] ECR I–6193
Krasniqi v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 391
Lair v Universität Hanover Case C–39/86, ECJ; [1988] ECR 3161
R (on the application of Bidar) v London Borough of Ealing and Secretary of State for Education and Skills Case C–209/03, ECJ; [2005] ELR 404
Roux v Belgium Case C–363/89, ECJ; [1991] ECR I–273
R v Secretary of State for the Home Department, ex parte VitaleUNK [1996] 2 CMLR 587; [1996] Imm AR 275
Legislation and international instruments judicially considered:
EC Treaty, Article 18
Immigration (European Economic Area) Regulations 2006, SI 2006/1003, regulation 4 and paragraph 5(1) of Schedule 4
Immigration Rules HC 395, paragraph 257C
EU law — right of residence — self-sufficient persons — EU national child — Article 18 EC Treaty — origin of resources — family members — non-EU national parent/carer — no right to work —Chen and Another v Secretary of State for the Home Department (Case C–202/02)
The first Claimant, a citizen of France, was born in the Republic of Congo. Her father, the second Claimant, was a citizen of the Republic of Congo and her mother was a French citizen. In January 2001 the second Claimant came to the United Kingdom where he applied for asylum. The Secretary of State for the Home Department refused his application and he exhausted his rights of appeal. In March 2001 the first Claimant joined her father in the United Kingdom and started attending primary school. In March 2004 the Claimants applied for an EEA residence permit and residence document respectively on the ground that the first Claimant had a right to reside in the United Kingdom as a student under European Community law and her father had a concomitant right of residence as her parent/carer. The Secretary of State refused the applications. On appeal, the Immigration Judge found that the second Claimant was prohibited from working in the United Kingdom and both Claimants were dependent upon public funds. She dismissed the appeals, holding that the first Claimant had failed to establish a right of residence in the United Kingdom as she was not ‘self-sufficient’. The Claimants were granted an order for reconsideration. They submitted that they were ‘self-sufficient’ because the second Claimant had an offer of a job as a computer engineer which he would take if permitted to work by the Secretary of State. The Claimants further submitted first, that the Immigration Judge's decision was fundamentally unfair as in her determination she doubted the veracity of evidence that was not disputed in the hearing before her, particularly in relation to the second Claimant's offer of employment; secondly, that the Immigration Judge failed to give adequate reasons for finding that, even if the proposed employment was genuinely available, it would not enable the Claimants to become self-sufficient; thirdly, that the Immigration Judge wrongly concluded that the first Claimant, and consequently the second Claimant, did not have an European Community law right to reside in the United Kingdom as a student or self-sufficient person.
Held, affirming the original determination dismissing the Claimants' appeals against the decision of the Secretary of State:
(1) the Immigration Judge was wrong to go behind the position accepted by the parties, and by the Immigration Judge herself, at the hearing and question the genuineness of the offer of employment to the second Claimant; given the evidence adduced regarding the second Claimant's qualifications, experience, and expected remuneration as a computer engineer, the Immigration Judge's conclusion that the second Claimant could not support himself and his daughter, even if he worked, was ‘demonstrably erroneous or baseless’: Krasniqi v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 391 applied; these errors would not be material if the Immigration Judge was right in concluding that neither Claimant had a right under European Community law to reside in the United Kingdom (paras 9–11);
(2) on 30 April 2006 the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regulations’), which implemented Directive 2004/38/EC,* entered into force without any transitional provisions ‘saving’ the Immigration (European Economic Area) Regulations 2000 for ‘old cases’; by virtue of paragraph 5(1) of Schedule 4 to the 2006 Regulations, the Claimants' appeals were to be treated under the 2006 Regulations and the substance of the Claimants' rights were governed by the 2006 Regulations and Directive 2004/38/EC (paras 14–16);
(3) the first Claimant was not a recipient of services under European Community law, as she was not attending a fee-paying school but was instead in receipt of free state education; likewise, she could not rely on Directive 93/96/EEC on the right of residence for students, which only applied to students following vocational training courses; moreover, Article 18 EC Treaty, which facilitated freedom of movement for European Union (‘EU’) citizens, did not confer an unqualified right of residence, but was conditional upon the EU citizen not becoming an unreasonable burden on the public finances of the host Member State: Ali v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 484 applied (paras 18, 20 and 23);
(4) Directive 2004/38/EC and the 2006 Regulations, however, included children attending state school within the definition of a ‘student’; an EU citizen, whether a school student or not, had a right of free movement and residence in another Member State provided that she and her family members were self-sufficient in the sense of being covered by comprehensive sickness insurance and not being an unreasonable burden upon the social assistance system of the receiving State; that right, which was derived from Article 18 EC Treaty and Directive 90/364/EEC on the right of residence, was repeated in substance in Directive 2004/38/EC and the 2006 Regulations; subject to the element of self-sufficiency, that right applied to the first Claimant in the instant case (paras 31, 32 and 34);
(5) the second Claimant did not have a free-standing right to reside in the United Kingdom under European Community law; his right, if any, would derive from the first Claimant's right; the second Claimant did not fall within the category of ‘family members’, which included the EU citizen's spouse or civil partner and their dependent ascendants or descendants; whilst the second Claimant was undoubtedly an ‘ascendant’ of the first Claimant, he was not dependent on her (para 35);
(6) neither Directive 2004/38/EC nor the 2006 Regulations specifically dealt with the second Claimant's situation; in Chen and Another v Secretary of State for the Home Department (Case C–200/02) the European Court of Justice (‘ECJ’) recognised the right of a non-EU national to reside in another Member State as the primary carer of a self-sufficient EU national child, in order to render effective the child's own Community Law right; it was implicit in the ECJ's decision that the primary carer should herself be self-sufficient; this requirement was reflected in paragraph 257C of the Immigration Rules HC 395 (as amended), which sought to give effect to the Chen decision and which required the parent/carer to be maintained and accommodated without taking up employment or having recourse to public funds (paras 35–36, 40–41 and 43);
(7) the instant case was different from the situation in Chen, where, although the parent/carer had to be in the United Kingdom in order for the EU national child to exercise her right to residence, that right existed independently of the family member; the child's self-sufficiency was derived from her parents but would have existed even if they had not been in the United Kingdom; any right of the family member had to be derived from an existing right of the EU national which he or she had individually and separately, which was simply not the case here (paras 62 and 63);
(8) the second Claimant could not assert a right to work, which he did not otherwise possess as a non-EU national, in order to establish the first Claimant's right of residence based upon her self-sufficiency; to accept this argument would mean that an EU national could enter and reside within another Member State on the basis of self-sufficiency providing his or her accompanying non-EU national family member could realistically gain employment in that State; the family member would thereby acquire a right to work equivalent to that of an EU national who wished to work in another Member State; that would elevate what had always been necessarily a derivative right for a non-EU national into a primary right previously only enjoyed by EU nationals (para 65);
(9) the first Claimant had failed to establish that she had a right to reside in the United Kingdom as a student or a self-sufficient EU national; consequently, the second...
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