Upper Tribunal (Immigration and asylum chamber), 2018-08-21, EA/04989/2017
| Jurisdiction | UK Non-devolved |
| Date | 21 August 2018 |
| Published date | 04 September 2018 |
| Hearing Date | 03 July 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/04989/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ea/04989/2017
THE IMMIGRATION ACTS
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Heard at Manchester Civil Justice Centre |
Decision & Reasons Promulgated |
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On 3 July 2018 |
On 21 August 2018 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
UPPER TRIBUNAL JUDGE PLIMMER
Between
JOU
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr O Atuegbe of R & A Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) we make an anonymity order prohibiting the disclosure or publication of any matter likely to lead to members of the public identifying the appellant. A failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Nigeria who was born on 6 November 1984. On 31 December 2016, she applied for a derivative residence card under reg 20 (relying on reg 16(2)) of the Immigration (EEA) Regulations 2016 (SI 2016/1052) (“the EEA Regulations 2016”). The basis of that claim was that her son (“D”), who is a Swedish national, lived in the UK, and that the appellant was his “primary carer”.
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On 4 May 2017, the Secretary of State refused the appellant’s application. The Secretary of State was not satisfied that the appellant met the requirements of reg 16(2), namely that D was a “self-sufficient person”. The Secretary of State was not satisfied that sufficient resources were available to D such that he would not become a burden on the social assistance system in the UK or that he had “comprehensive sickness insurance cover” in the UK.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal (‘FtT’). Judge Brunnen dismissed the appellant’s appeal. He accepted that the appellant was D’s “primary carer”. However, he was not satisfied that D was “self-sufficient”. First, he was not satisfied that gifts of money made to the appellant to support D were, in themselves, sufficient to make D “self-sufficient” but that in any event the appellant was no longer in receipt of such gifts. Further, although the judge accepted that the appellant had been employed since August 2017 and that her earnings were “quantitively sufficient” for D to be self-sufficient, they could not be taken into account as the appellant had “no right to be working in the UK unless she has a derivative right of residence”. Secondly, in any event, the judge concluded that the appellant’s health insurance did not satisfy the requirement of being “comprehensive sickness insurance” as it did not cover visits to a GP or to an Accident & Emergency Department of a hospital.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal on the basis that the judge had erred in law by not taking into account the appellant’s earnings in assessing whether D was self-sufficient and that her health insurance coverage was “equivalent to comprehensive” insurance.
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On 6 March 2018, the FtT (Judge L Murray) granted the appellant permission to appeal. The grant of permission was on the following basis:
“The grounds have merit. Judge arguably erred in the light of the decision in Alokpa v Ministre du Travail Case C-86/12 CJEU (Second Chamber) in which it was held that when considering, for the purposes of Article 7 of the Citizens Directive, whether an EU citizen had sufficient resources it sufficed that such resources were available to the citizen. There was no requirement as to the origin of the resources and these could be provided by a national of a non-member state. It is also arguable that the Judge’s finding that comprehensive sickness insurance had to cover visits to the GP and A & E was flawed in the light of the case of Jobcentre Berlin Neukölln v Alimanovic Case C-67/2.”
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Following directions issued by the Upper Tribunal on 30 May 2018, both parties submitted skeleton arguments addressing the EU law issues raised in this appeal.
The EEA Regulations 2016
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The relevant provisions in the EEA Regulations 2016 are found in reg 16(1), (2) and (5) as follows:
“16. (1) A person has a derivative right to reside during any period in which the person—
(a) is not an exempt person; and
(b) satisfies each of the criteria in one or more of paragraphs (2) to (6).
(2) The criteria in this paragraph are that—
(a) the person is the primary carer of an EEA national; and
(b) the EEA national—
(i) is under the age of 18;
(ii) resides in the United Kingdom as a self-sufficient person; and
(iii) would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period.
….
(5) The criteria in this paragraph are that—
(a) the person is the primary carer of a British citizen (‘BC’);
(b) BC is residing in the United Kingdom; and
(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.”
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For the purposes of reg 16(2) a “self-sufficient person” is defined in reg 4(1)(c) as follows:
“’self-sufficient person’ means a person who has –
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom; …”
Discussion
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Before the judge, it is clear that the appellant only relied upon a “derivative right to reside” as set out in reg 16(2). This provision sets out, in effect, in UK domestic law the effect of the ECJ’s decision in Chen and Zhu (Case C-200/02) [2004] Imm AR 754.
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The crucial issues in dispute are whether the appellant as D’s “primary carer” established that he was a “self-sufficient person” based upon her income derived from employment in the UK and that D had “comprehensive sickness insurance”.
Resources and self-sufficiency
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The judge accepted that the appellant’s income was “quantitatively sufficient” but could not be taken into account in order to establish D’s rights based upon “self-sufficiency” since it produced a “circular argument” because ([26]):
“I find that reliance cannot be placed on the appellant’s earnings in the UK to establish that [D] is self-sufficient and has a right to reside in the UK. He has no right from which the appellant claim to derive her own right to be here and to work.”
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In support of that conclusion, the judge relied upon earlier decisions of the Asylum and Immigration Tribunal in GM and AM [2006] UKAIT 59 and MA [2006] UKAIT 90.
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Mr McVeety, who represented the respondent, both in his skeleton argument and oral submissions maintained that the judge was correct. He submitted that at the date of the appellant’s application, she had no right to work, even though the Secretary of State has subsequently issued the appellant with a Certificate of Application (“COA”) on 13 September 2017 which entitled her to work. Mr McVeety submitted that account should only be taken of her earnings if she had a prior right to work which was in existence at the date of application, otherwise merely to make an application for a residence card based upon a derived right of residence would, with the issue of a COA, in itself allow an individual to establish the right which they otherwise would not have possessed. He submitted that that “circular interpretation” was impermissible.
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Mr McVeety’s submission is undoubtedly based upon the Secretary of State’s policy set out in the current Home Office Policy Guidance, Free Movement Rights: derivative rights of residence (Version 4.0), 27 February 2018 at pp.15-16:
“Income from the primary carer
A child may show that they are self-sufficient by relying upon the income of their primary carer. However, any work undertaken in the UK will only be considered acceptable where this is lawful employment. For example, if the primary carer currently has leave to remain under another part of the Immigration Rules which entitles them to work, they can use any income from those earnings to show they are self-sufficient.
Before 16 July 2012, when Chen was given effect under the Immigration (European Economic Area) Regulations 2006 (the 2006 regulations), paragraph 257C of the Immigration Rules did not grant primary carers of EEA self-sufficient children the right to work.
Since 16 July 2012, the 2006 regulations (as amended) and now the 2016 regulations, enable the primary carer with a derived right of residence to work lawfully in the UK regardless of whether a document has been issued to them in that capacity. This means there may be cases where the primary carer seeks to rely on this work to meet the self-sufficiency requirement when applying for a document. You must, therefore, consider whether the EEA national child was self-sufficient before the primary carer started employment in a Chen capacity. This is because the EEA national child must be self-sufficient first in order for the primary carer to derive a right of residence, and so be able to work lawfully in the UK.
In cases where self-sufficiency has already been established (for example, the applicant has already been issued a document under the 2006 regulations or the 2016 regulations on...
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