Liu, Wang, Ahmed and Mouloungui v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Moses,Lord Justice Lawrence Collins |
| Judgment Date | 25 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1275 |
| Docket Number | Case No: (1) C5/2007/0290 (3) C5/2007/1258 (4) C5/2006/2163 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 October 2007 |
[2007] EWCA Civ 1275
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(AIT No (1): IA/02208/2006)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Moses and
Lord Justice Lawrence Collins
Case No: (1) C5/2007/0290
(2) C5/2007/0369
(3) C5/2007/1258
(4) C5/2006/2163
Miss F Webber (instructed by Ms Janie Batchford) for Liu and Wang; Mr M Chatwin (instructed by Fernandez Vaz) for Ahmed and ors; Miss N Rogers (instructed by Irving & Co) for Mouloungui and Mouloungui.
Mr C Vajda QC and Ms M Demetriou (instructed by Treasury Solicitors) appeared for the Respondent.
The applicants have thus far been referred to anonymously, under the court policy of anonymising all immigration cases at their inception, in case it becomes apparent that publicity might be harmful to the applicants and their connexions, whether or not they are returned to their country of origin. At the opening of the appeal the court indicated that in pursuit of the leading principle of openness it would wish to give judgment using the appellants' proper names, unless significant reasons were advanced for its not doing so. All counsel, after taking instructions, were good enough to indicate that there was no objection to their clients being named.
Background
All of these conjoined appeals explore some details arising from the jurisprudence of the European Court of Justice [ECJ] and of this court in relation to the rights of movement and residence of citizens of the European Union that are conferred by Article 18 EC, and the associated rights of certain members of their families that are conferred by Directive 90/364, now replaced by Directive 2004/36. None of the adult appellants are citizens of the Union. All of them claim a right to residence in the United Kingdom by virtue of a family connection with a child who is a citizen of the Union.
The appellant Wang is the mother of the appellant Liu, who is now three years old, and their cases will be considered together. In the Ahmed appeal, the three appellants are Mr and Mrs Ahmed and their daughter aged now six years. In the Mouloungui appeal the appellants are Grace Mouloungui (“Grace”), aged eleven years, and her father Mr Mouloungui.
Wang and Liu and Ahmed are Irish cases. In each case the parent, a non-EU citizen resident in the United Kingdom on a short-term basis, arranged to travel to the Republic of Ireland in order to give birth to the child with whom this case is concerned. There has been no attempt to suggest that the birth took place in the Republic for any other reason than to take advantage of the nationality rules of that country, which under the jus soli then (but no longer) part of its law conferred Irish nationality, and thus citizenship of the Union, on any child, of whatever origin or parentage, who was born there. It might have been thought that for the parents who had made that arrangement then to seek for themselves the rights of citizen of the Union on the back of the right that they had created for their child engaged the principle of the abus de droit that is part of Community jurisprudence. However, the European Court of Justice in paragraphs 34 to 40 of its judgment in Case C-200/02 Chen [2004] ECR I-9925 rejected any such argument; and we therefore treat these children as citizens of the Union like any others; and in the case of their parents ignore their role in creating that citizenship.
Mouloungui has a different background. Grace was born in 1996 as a national of the French Republic; I understand that was because her mother is a French national, and although the family seems to have been principally located in the DRC, Grace was born in a dependent territory of the French Republic. Mr Mouloungui, a citizen of the DRC, came to this country in 2001 and was shortly thereafter followed by Grace. Mr Mouloungui has been in this country without permission since he exhausted his rights of appeal in relation to his asylum claim in, I think, 2003. He now claims the right to remain here permanently on the basis of Grace's citizenship of the union.
The facts in some further detail
Liu and Wang . Miss Wang, a citizen of the People's Republic of China, came to this country, aged 16, in 2002. She unsuccessfully claimed asylum, but as an unaccompanied minor was given discretionary leave to remain until her 18 th birthday on 12 October 2004. As an incident of her discretionary leave to remain she was permitted to work, and did so in a restaurant. There she appears to have met Mr MK Liu, who had been in this country without leave, and had been working here illegally, apparently since 1995. Miss Wang travelled to the Irish Republic when pregnant by MK Liu, and gave birth to the appellant Liu there on 18 September 2004. Thereafter, on 7 February 2005, she married MK Liu. Before her discretionary leave to remain expired, Miss Wang applied for an extension. The Secretary of State's refusal of such leave was challenged in these proceedings on the basis of the EU citizenship of Liu. Wang's permission has been extended to the end of the proceedings by section 3C of the Immigration Act 1971, and she has permission to work because of that extension, but not otherwise.
Ahmed . Mr Ahmed was given leave to enter the United Kingdom as a student in 1998, and that leave was successively extended until December 2005. He married Mrs Ahmed in Bangladesh in February 2000, and she was given leave to enter as his spouse in July 2000. Their daughter was born in Dublin in November 2001. Both parents worked in this country in conformity with the terms of their respective conditions to remain. In July 2005, that is some six months before those permissions expired, they applied for permission to remain, this time on a permanent basis, on this occasion as the parents and primary carers of their daughter, an EU citizen. These proceedings spring from those applications. The parents now have permission to remain in the United Kingdom, and permission to work here, solely by virtue of section 3C, a permission that will expire on the conclusion of this appeal.
Mouloungui . The facts of this case have largely been set out above. Because of the particular argument that is raised in this appeal, it is necessary to add that since her arrival here in 2001 Grace has been in (compulsory) full-time education, and receives excellent reports from her school.
The jurisprudence
The jurisprudence that has to be applied to these applications was set out by the Court of Appeal, in terms that bind this court, in W (China) v The Secretary of State for the Home Department [2007] 1 WLR 1514. That authority causes significant difficulties for the appellants. It may in principle be possible, under the domestic rules of precedent, to undermine a binding authority by showing that it is clearly incompatible with the authority of the ECJ (see paragraph 171 of the judgment of the Master of the Rolls in R (Countryside Alliance v The Attorney General) [2007] QB 305). No such sustained argument was made to us, though one of the arguments, referred to below, could not be maintained unless W (China) was wrongly decided. Rather, the main thrust of the submissions was that W (China) was distinguishable.
These appeals turn, as did W (China) and Chen that it applied, on Article 18EC, read with the requirements of Article 1(1) of Directive 90/364 and Article 7 of Directive 2004/38. Article 17EC creates a citizenship of the Union, enjoyed by everyone holding the nationality of a Member State, as is the case with Grace, Liu and the infant Ahmed. Article 18 then provides that:
“Every citizen of the Union should 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”.
Those limitations and conditions are to be found in the Directives, and more particularly in Directive 2004/38. They provide that persons asserting a right of residence as EU nationals (rather than on the basis of being EU migrant workers) have to demonstrate that they and their “family members” have (i) comprehensive sickness insurance in the host member state; (ii) “sufficient resources” to avoid becoming a burden on the social assistance system of the host member state.
The Court of Appeal held in W (China) that in the unusual case of a minor EU citizen, unable to cope for himself without parental or guardian support, those Community rules led to the following propositions:
i) Applying paragraph 45 of Chen, the right of residence of a minor could only be effectively asserted with the presence and support of a carer or guardian, and that, if the requirements of the Directives are fulfilled, creates a right for the parent to reside with the child, (see W (China) paragraph 6).
ii) All of the minor EU citizen and his non-EU citizen carers have to fulfil the Directive requirements of (a) sickness insurance; (b) sufficiency of means: W (China) paragraph 8.
iii) Those conditions are pre-conditions to the existence of the article 18 right in any given case, and thus the right does not exist until those conditions are fulfilled: ( W (China) paragraph 16).
iv) The pre-condition of sufficiency of means cannot be fulfilled by funds derived from employment that is precarious because it is unlawful: ( W (China) paragraph 14).
v) The member state is under no obligation to adjust its...
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