Upper Tribunal (Immigration and asylum chamber), 2016-10-06, IA/07846/2014
| Jurisdiction | UK Non-devolved |
| Date | 06 October 2016 |
| Published date | 31 July 2018 |
| Hearing Date | 02 August 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/07846/2014 |
Appeal Number: IA/07846/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07846/2014
THE IMMIGRATION ACTS
|
Heard at Royal Courts of Justice, Belfast |
Decision & Reasons Promulgated |
|
On 2 August 2016 |
On 6 October 2016 |
Before
UPPER TRIBUNAL JUDGE O’CONNOR
Between
ERMIRA [B]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
secretary of state for the home department
Respondent
Representation:
For the Appellant: Ms B Muldoon, instructed by MSM Solicitors
For the Respondent: Mr M Matthews, Senior Presenting Officer
DECISION AND REASONS
Introduction
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The appellant is a national of Albania, born 18 September 1991. She married Mr [B], an Albanian national, in Albania on 28 August 2011.
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The appellant’s husband came to the UK in 2001, entered into a relationship with an Irish national in 2005, lived with this Irish national in Belfast and was issued with an EEA residence card – valid between 13 May 2009 and 13 May 2014 – as a consequence. This relationship broke down in 2011, shortly after which the appellant’s husband returned to Albania. The appellant’s husband asserts that he thereafter returned to the UK in July 2012, at which time he told an immigration officer that his earlier relationship had broken down. He was informed that his residence card had been revoked, but he received no further communication from the Home Office in this regard.
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The appellant entered the United Kingdom without lawful authority in July 2012, and the couple’s son was born in Belfast on 1 May 2013. On 15 July 2013 the child was issued with a certificate of Irish nationality. The family have remained living in Belfast since this time. It is the appellant’s case that the employment earnings of her husband are used to finance the family’s outgoings. It is not in dispute that the appellant’s husband has not demonstrated an entitlement to work in the UK at the material times.
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On 9 September 2013 the appellant made an application to the Secretary of State for an EEA residence card on the basis of being a parent/carer of an EEA national child exercising Treaty Rights as a self-sufficient person.
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This application was rejected by the Secretary of State in a decision dated 28 January 2014. Within her decision letter the SSHD gave consideration to regulation 15A(2) of the Immigration (European Economic Area) Regulations 2006 (“2006 EEA Regulations”) but concluded that the appellant’s child was not a self-sufficient person for the purposes of such Regulations.
Proceedings before the First-tier Tribunal
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The appellant appealed the aforementioned decision to the First-tier Tribunal. That appeal was heard by First-tier Tribunal judge Grimes on 7 May 2015 and dismissed in a decision promulgated on 8 June 2015.
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Before the First-tier Tribunal Ms Muldoon submitted, on the appellant’s behalf, that:
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The appellant’s husband’s earnings (current and/or prospective) should be taken into account when determining whether the child is self-sufficient (in reliance on the decision of the CJEU in Alokpa v Ministre du Traveil, de l’Emploi et de Immigration (Case C-86/12), and the rationale deployed by the Irish High Court in its decision in OA & another v The Minister of Justice Equality and Defence [2014] IEHC 384):
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In the alternative, given the apparent divergence between Member States as to the interpretation of the meaning of the term “self-sufficient”, the First-tier Tribunal should make a preliminary reference to the CJEU;
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The appellant should be permitted to remain in United Kingdom in line with the principles enunciated in the decision of the CJEU in Zambrano Case C-34/09 [2011] ECR I-0000. The appellant’s claim could not be defeated by the submission that the decision of the UK state would not have the effect of compelling the appellant’s child to leave the European Union because it could not be said that the child could live in the Republic of Ireland;
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In the alternative, the decision to refuse the appellant an EEA residence card was not in accordance with the law and leads to a breach of Article 8 ECHR.
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In summary, the First-tier Tribunal concluded as follows:
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The meaning of self-sufficient in the instant context is the subject of clear and unambiguous authority from the Court of Appeal (W (China) & Another v SSHD [2006] EWCA Civ 1494 and Liu & Ors v SSHD [2207] EWCA 1275). The decision in Alokpa did not address the relevance of earnings from illegal working and does not impinge on the interpretation of EU law set forth by the Court of Appeal;
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It was not appropriate to make a reference to the CJEU, the decision in OA not amounting to a substantive divergence between Member States on the issue in play in the instant appeal;
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The appellant has not applied for entry to, or residence in, the Republic of Ireland, and has not demonstrated that her child would be prevented from living in the Republic of Ireland;
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The appellant is not required to leave the United Kingdom as a consequence of the SSHD’s decision. Therefore, such decision does not amount to an interference with the appellant’s private and/or family life rights under article 8 ECHR. In the alternative, requiring the appellant to make a paid application for leave in this regard is proportionate.
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Grounds of Application
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The pleaded grounds are threefold:
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The FtT applied the wrong test to its consideration of whether to make a preliminary reference to the CJEU. Its refusal to make a reference is unlawful;
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The FtT’s conclusion that the appellant failed to demonstrate that she would not entitled to enter the Republic of Ireland (with the consequence that her child could not exercise the right to live there) is irrational on the available evidence;
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The FtT failed to give due consideration to Article 8 ECHR.
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Legal context
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It is necessary to set the discussion which follows in its proper legal context.
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Under EU law, Article 7 of the Directive 2004/38 (“Right of residence for more than three months”) provides:
“(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).”
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Regulation 15A was inserted into the 2006 EEA Regulations from 8 November 2012 with the intention of reflecting in legislation the EU law rights identified in a number of decisions from the CJEU.
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The relevant parts of regulation 15A read:
“15A Derivative right of residence
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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 s derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
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P satisfies the criteria of this paragraph if –
(a) P is the primary carer of an EEA national; and
(b) the relevant EA national –
(i) is under the age of 18
(ii) is residing in the United Kingdom as a self-sufficient person; and
(iii) would be unable to remain in the United Kingdom if P were required to leave. …
(7) P is to be regarded as a primary carer of another person...
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