MA & Others (EU national; self-sufficiency; lawful employment)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeSENIOR IMMIGRATION JUDGE
Judgment Date08 Dec 2006
Neutral Citation[2006] UKAIT 90

[2006] UKAIT 90

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Before:

Senior Immigration Judge Storey

Senior Immigration Judge Grubb

Between
MA & Others
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr M Chatwin, Counsel instructed by Fernandes Vaz, Solicitors

For the Respondent: Mr J Gulvin, Home Office Presenting Officer

MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh

An EU (EEA) national child cannot rely upon income derived from a parent lawfully working in the UK during a period of limited leave restricted to a specific purpose or who is on temporary admission and not prohibited from working in order to establish a right of residence based upon ‘self-sufficiency’. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.

DETERMINATION AND REASONS
1

These reconsiderations concern the joined appeals of an EU national child and her parents. The first and second appellants are married and are nationals of Bangladesh. The third appellant is their daughter who was born in Dublin on 4, November 2001 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.

2

On 11 July 2005, applications were made on behalf of the third appellant for a residence permit under EU law and, in the cases of the first and second appellants, for leave to remain as her parents under paragraph 257C of the Immigration Rules ( Statement of Changes in Immigration Rules, HC 395). The third appellant claimed a right of residence in the UK as a self-sufficient EU citizen under Article 18 EC Treaty and Directive 90/364. The first and second appellants claimed that they had a derivative right of residence in the UK as the third appellant's parents and her primary carers.

3

On 13 March 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 was prohibited for the first and second appellants by virtue of paragraphs 257C and 257D of the Immigration Rules. The appellants appealed. In a determination promulgated on 11 May 2006, Immigration Judge Turcan dismissed their appeals. They sought reconsiderations which were ordered by a Senior Immigration Judge on 25 May 2006.

The facts
4

The facts of these appeals are not now disputed. The first appellant was given leave to enter the UK as a student on 3 March 1998 and his leave, we are told, was subsequently extended in stages until 31 December 2005. During that time, he studied for the Bar at Northumbria University and was called to the Bar in March 200In 2005–2006, he undertook further study for an MBA at the Commonwealth College of Law and Business Studies in London and at the time of the hearing before the immigration judge was about to complete that course.

5

On 21 February 2000, he married the second appellant in Bangladesh and she was given leave to enter the UK on 6 July 2000, we assume as his spouse. The second appellant became pregnant and gave birth to their daughter (the third appellant) in Dublin on 4 November 2001.

6

During their time in the UK, both the first and second appellant have worked. At the hearing before the immigration judge, the evidence was that the first appellant worked part-time for Boots and the second appellant worked as a customer service assistant for Sainsbury's. There was evidence of their financial position including bank account details. It was accepted by the immigration judge that as a matter of fact their income was enough to make the family self-sufficient in the sense that they did not need to rely upon public funds. It was also accepted that the family were covered by medical insurance through the first appellant's Boots BUPA Scheme. It was not disputed that the first and second appellants were working lawfully under the terms of their leave as a student and spouse of a student.

7

The immigration judge concluded that the first and second appellants did not have a right to work in the UK which would allow them to sustain the self-sufficiency of the third appellant. Their continued work, as carers of the first appellant, would be prohibited by paragraphs 257C and 257D of the Immigration Rules and those provisions were not contrary to EU law.

Adjournment application
8

At the hearing before us, Mr Gulvin sought an adjournment. He told us that he was not in a position to make submissions on the Home Office's position on the issue of reliance on lawful income to establish ‘self-sufficiency’ and he wished to obtain instructions from the Home Office's policy section. Mr Chatwin objected and invited us to continue. Whilst we appreciated Mr Gulvin's personal difficulties, we did not consider that there had been inadequate time for the respondent to prepare his case for the reconsiderations. It seemed clear to us that the Home Office's policy is probably crystallised in the prohibitions on employment in paragraphs 257C and 257D. Indeed, in another reconsideration listed before us, the Secretary of State sought reconsideration in an appeal which gave rise to the very same issues and, it is clear from the grounds that that is indeed the Secretary of State's position. For these reasons, and mindful of the requirements of rule 21 of the 2005 Procedure Rules, we were not satisfied that the appeals could not be justly determined and we refused the adjournment application.

The legal issue in these appeals
9

As we have indicated, the facts are no longer in dispute in these appeals which raise a pure question of law: namely whether an EU national child can establish that she is self-sufficient (and thus has a right of residence in the UK) based upon income derived from the employment of her parents while they are here for a temporary purpose. The appellants claim that the immigration judge erred in law in deciding that the first appellant could not rely on this income. As to her parents, it is said that they derive a right of residence in order to care for her whilst she is exercising her own right to reside in the UK. The appellants rely principally upon the Court of Justice's landmark decision in Chen and another v SSHD (Case C-200/02) [2005] INLR 1.

10

The Secretary of State contends that the immigration judge was correct. Mr Gulvin submitted that the third appellant could derive no EU right from the current income of her parents. Thus, the prohibition on their future employment found in the immigration rules is lawful and she was not, therefore, self-sufficient. Reliance was placed upon the Tribunal's recent decision in GM and AM (EU national; establishing self-sufficiency) France [2006] UKAIT 00059.

The relevant EU and domestic legal provisions
11

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.

12

As is readily apparent from her circumstances, 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, she 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.”

13

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.

14

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; …”.

15

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)).

16

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)).

17

Directive 90/364 was transposed into UK law by the Immigration (European Economic Area) Regulations 2000, SI 2000/2326. 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...

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