Okafor & others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,Lord Justice Etherton,Lord Justice Maurice Kay |
| Judgment Date | 20 April 2011 |
| Neutral Citation | [2011] EWCA Civ 499 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 April 2011 |
| Docket Number | Case No: C5/2010/0778, C5/2010/0779 & C5/2010/0780 |
[2011] EWCA Civ 499
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Senior Immigration Judge Freeman
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Vice-president of the Court of Appeal, Civil Division
Lord Justice Thomas
and
Lord Justice Etherton
Case No: C5/2010/0778, C5/2010/0779 & C5/2010/0780
Mr Ramby De Mello and Mr Abid Mahmood (instructed by Messrs Aman) for the Appellants
Mr David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing date: 17 January 2010
This appeal raises an issue as to the circumstances in which family members of an EU citizen are entitled to permanent residence in another Member State where the EU citizen dies before acquiring the right of permanent residence.
The background
The nationality of the appellants and their initial right to residence in the UK
In 1994 the first appellant, a citizen of Nigeria (to whom I shall refer as the father), married a citizen of the Netherlands (the mother). They had two children, the second appellant, born in 1995 and the third appellant, born in 2000. Each was born in Germany; they are both citizens of the European Union. Although there is evidence that the whole family first came to the UK in 2001, it was common ground that it was only on 7 June 2003 that the mother, the father and the children were given permission to reside under the terms of Directive 2004/38/EC (often referred to as the Citizenship Directive) which has been given effect in the United Kingdom through the Immigration (European Economic Area) Regulations 2006. As these Regulations extend the rights under the Directive to citizens of Norway, Lichtenstein, Iceland and Switzerland, EU citizens and citizens of the other states are defined as EEA nationals. As it was common ground that the UK Regulations had to be construed so as to be compatible with the Directive and as the argument on both sides was conducted by reference to the Directive, I shall refer principally to the Directive.
The right of residence was given to the mother as a citizen of the Netherlands, under Article 7(1) which provides as follows:
"1. All Union citizens shall have the right of residence on the territory of another Member State for a period longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(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; or
(c) — are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
— have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they 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; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)."
The right of residence for the father and the two children was granted by Article 7(2) which provides as follows:
"2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c)."
Under Article 10 of the Directive, the right of residence of family members of a Union citizen who are not nationals of the Member State is to be evidenced by the issuing of a document called "Residence Card for Family Member of the Union Citizen". Under Article 11 that Residence Card is to be valid for five years from the date of issue. The UK does not issue Residence Cards, but the right of residence is evidenced by an endorsement in the passport. The passport of the father was endorsed accordingly and that of the mother endorsed to cover her position and that of the children.
There was some evidence before the Immigration Judge that the mother was employed in 2003, but it was common ground that before her death in 2007, she had not fulfilled any of the conditions in Article 7(1). She was not therefore a "qualified person" within the meaning of Regulation 6 of the UK Regulations which transposed the Directive. It is not necessary therefore to set out any more detail in respect of her position.
Their position after the death of the mother
After the mother's death, the father and the children remained in the United Kingdom; the period of five years for which their residence permit had been granted expired, in accordance with its terms, on 26 June 2008.
Specific provision for rights of residence of the father and the children after the mother's death is made by Article 12. Article 12(1) sets out the position of the children as family members who are nationals of a Member State.
"Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1)."
Again there was no dispute that the children did not meet any of the qualifying conditions of Article 7(1).
The position of the father as a non-national of a Member State is covered by paragraph 2 of the Article which provides as follows:
"Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they 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, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be defined as in Article 8(4).
Such family members shall retain their right of residence exclusively on a personal basis."
There was some argument as to whether the father could satisfy the condition in respect of resources to which I return at paragraph 17.
As is apparent from the wording of Article 12(1) and Article 12(2), both refer to the acquisition of the "right of permanent residence". Article 12(3) makes a further provision which enables children and the parent who has actual custody of the children to reside in the host Member State if they are at an educational establishment for the purpose of study until the completion of the studies. Article 12(3) is in the following terms:
"The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies."
The evidence established that both children were and are at school and that therefore under Article 12(3) the children and their father (as the person with custody after the death of the mother) are entitled to retain the right of residence until the completion of the studies. However, as I explain at paragraph 18, the argument advanced by Mr De Mello (who appeared for the father and the children) went further; it was contended that Article 12(3) also provided for the right of permanent residence in certain circumstances.
The application for permanent residence
In January 2009, the father applied for a permanent residence card on the basis that he was a family member of a Union citizen who had died and on the basis that he had resided in the UK for a continuous period of five years. The children applied on a similar basis. The application based on residence for a continuous period of five years was founded on Article 16 of the Regulation 2004/38/EC, the children relying on Article 16(1) and the father on Article 16(2). These provided as follows:-
"1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years."
This Article had been transposed by Regulation 15 of the UK Regulations. Regulation 15(1) (a) and (b) of those Regulations provide as follows:
"(1) The following persons shall acquire the right to reside in the United Kingdom permanently –
(a) an EEA...
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