Upper Tribunal (Immigration and asylum chamber), 2018-07-31, EA/02804/2015
| Jurisdiction | UK Non-devolved |
| Date | 31 July 2018 |
| Published date | 14 August 2018 |
| Hearing Date | 19 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/02804/2015 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02804/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Promulgated |
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On 19 March 2018 |
On 31 July 2018 |
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Before
UPPER TRIBUNAL JUDGE O’CONNOR
UPPER TRIBUNAL JUDGE CANAVAN
Between
MODUPE [A]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: In person
For the respondent: Ms A. Brocklesby-Weller, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a Nigerian citizen and the mother of a 14-year-old Irish citizen (“Z”). She appealed the respondent’s decision dated 14 October 2015 to refuse to issue a residence card recognising a derivative right of residence as the primary carer of a self-sufficient EEA national child.
2. First-tier Tribunal Judge Widdup dismissed the appeal in a decision promulgated on 06 February 2017. On 05 December 2017 the Upper Tribunal set aside the First-tier Tribunal decision (annexed). The appeal was listed for remaking before a panel of the Upper Tribunal.
3. The appellant appeals under regulation 26 of The Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations 2006”) on the ground that the decision breaches rights under the EU Treaties in respect of entry to or residence in the United Kingdom.
LEGAL FRAMEWORK
Rights of European citizens
4. Article 20 of the Treaty on the Functioning of the European Union (TFEU) (ex Article 17 TEC) sets out rights arising from citizenship of the Union.
“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
…
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
5. Article 21 (ex Article 18 TEC) states:
“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 the Treaties and by the measures adopted to give them effect. …”
6. In Baumbast and R (Free Movement of Persons) [2002] EUECJ C-413/99 the Court of Justice of the European Union (CJEU) outlined the underlying importance of the rights arising from European citizenship even if the citizen was not exercising rights of free movement as a worker.
“94. The answer to the first part of the third question must therefore be that a citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.”
7. The principle was summarised by Mrs Justice Lang in R (on the application of Gureckis) v SSHD [2018] EWHC 3298 (Admin).
“89. Freedom of movement for workers was one of the founding principles of the EU, now found in Article 45 TFEU. Its primary purpose was to promote the economic objective of a common market, together with the freedom of movement of goods, services and capital. This was reflected in the earlier cases relied upon by Mr Eadie QC, such Case 53/81 DC Levin v Secretary of State for Justice [1982] 2 CMLR 454, at [17]. However, since the Treaty of Maastricht, which introduced the notion of EU citizenship, the concept of freedom of movement has broadened into a right to freedom of movement and residence for EU citizens, and their families, without a requirement to be economically active, provided that they do not seek social assistance from the host Member State. Articles 20 and 21 of TFEU grant EU citizens “the right to move and reside freely within the territory of the Member States”, subject to the limitations and conditions laid down in the Treaties and Directives. These principles are reflected in Recitals (1), (2), (3), (5) and (11) to the Directive. See also Case C-413/99 Baumbast v Secretary of State for the Home Department [2002] 3 CMLR 23 at [81] – [84].”
8. Article 7 of the Charter on Fundamental Rights of the European Union protects the right to respect for ‘private and family life’. Article 51 of the Charter makes clear that the provisions of the Charter apply in the following circumstances:
“The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.”
Rights of free movement
9. The Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (2004/38/EC) (“the Citizens’ Directive”) governs the rights of free movement of European citizens.
10. Article 7 of the Citizens’ Directive states:
“(1) 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:
(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).
(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).”
11. Recital (29) of the Citizens’ Directive states that the Directive should not affect more favourable national provisions.
Self-sufficient European national children
12. In Zhu and Chen [2004] ECR I-9925 the CJEU considered the position of an Irish national child (born in Belfast) who lived in the UK with her mother, who was a third country national. The court noted that the referring court had observed that, as an Irish national, the child was free to move within the Common Travel Area of the United Kingdom. The court considered the child’s underlying rights as a European citizen and concluded:
“In circumstances like those of the main proceedings, Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.”
13. Regulation 15A(2) of the EEA Regulations 2006 sets out the requirements to show a derivative right of residence as the primary carer of a self-sufficient child:
‘(1) A person (“P”) who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
(2) [A person] satisfies the criteria in this paragraph if –
(a) P is the primary carer of an EEA national (“the relevant EEA national”; and
(b) the relevant EEA national -
(i) is under the age of 18;
(ii) is residing in the United Kingdom as a self-sufficient person;
(iii) would be unable to remain in the United Kingdom if P were required to leave.’
14. Regulation 4 defines a “self-sufficient person”:
‘(1)(c) “self-sufficient person” means a person who has—
-
sufficient resources not to become a burden on the social assistance system of the United Kingdom during his...
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