Upper Tribunal (Immigration and asylum chamber), 2010-05-18, [2010] UKUT 161 (IAC) (MDB and Others (Article 12, 1612/68))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Ms S Ward |
| Status | Reported |
| Date | 18 May 2010 |
| Published date | 02 June 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 02 February 2010 |
| Subject Matter | Article 12, 1612/68 |
| Appeal Number | [2010] UKUT 161 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MDB and others (Article 12, 1612/68) Italy [2010] UKUT 161 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
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On 2 February 2010 |
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Before
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE S M WARD
Between
MDB
MADB
GRDB
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Miss L Appiah of Counsel instructed by Charles Annon & Co.
For the Respondent: Mr C Avery, Home Office Presenting Officer
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In London Borough of Harrow v Ibrahim Case C-310/08 and Maria Teixeira v London Borough of Lambeth Case C-480/08 the European Court of Justice ECJ confirmed the principle established in the Baumbast Case C-413/99 [2002] ECR I-7091, namely that in order to confer on a child a right of residence Article 12 of Regulation 1612/68 requires only that he has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker.
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Although simply seeking employment may be sufficient to make an individual a worker in Union law for a limited period, it is not enough to engage Article 12, since this provision requires that the parent concerned is someone who is or has been employed in the territory of another Member State.
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If there is a parent who meets the requirement of employment, then his child can acquire an Article 12 right of residence. But under the Baumbast principle such a right of residence for a child can only start to run from the date he or she begins in education; it cannot commence from the child’s date of birth.(The same is true in respect of the derived right of residence of a parent carer of such a child).
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On Baumbast principles, a child in education can continue to have an Article 12 right of residence even if the said parent later ceases to be a worker.
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In a case concerned with an EEA decision the tribunal judge is obliged by s.84(1)(d) of the Nationality, Immigration and Asylum Act 2002 to decide whether the decision breaches any of the appellants’ rights under the Community Treaties in respect of their entry to or residence in the United Kingdom (emphasis added); see also s.109(3). Where the decision is a refusal to issue a permanent residence card that may necessitate, in the event that refusal is found correct, considering whether the appellant was entitled nonetheless to an extended right of residence.
DETERMINATION AND REASONS
1. The appellants are a mother and two sons. The first appellant is a citizen of Argentina. Her two sons, however, are citizens of Italy and therefore EEA nationals. They were born on 27 November 2001 and 23 December 2004 respectively. The first appellant first came to the UK in May 2002 following her marriage to an Italian citizen, Mr LDB (the father of her children). On 26 November 2002 she applied for and was issued a residence card as the family member of an EEA national valid from 25 October 2002 until 25 April 2003. She was issued another residence card valid from 23 May 2003 until 23 November 2003. In both cases the issue was for a six month period only. This was because her husband was a job seeker, still yet to find employment. A further application for a residence card was made on 21 November 2003 but was refused as no evidence was provided that her husband had found employment or was otherwise exercising Treaty rights. On 29 January 2008 she applied again, this time for permanent residence for herself and her two children. They were all refused on 24 October 2008. In a determination notified on 6 March 2009 Immigration Judge (IJ) E.B. Grant dismissed their appeals. Their success in obtaining an order for reconsideration has brought the matter before us.
2. Although when we heard this case we sat as members of the Asylum and Immigration Tribunal (AIT), by virtue of legislative changes brought into effect on 15 February 2010 we are now required to complete hearing it as judges of the Upper Tribunal Immigration and Asylum Chamber (UTIAC).
3. Before the IJ the appellants pursued their case on three grounds. First it was claimed that all three were entitled to permanent residence under reg 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (hereinafter the “2006 EEA Regs”) on the basis of having been resident for five years as the family members of an EEA national exercising Treaty rights. Second, it was contended that even if they could not qualify under reg 15(1)(b), they had a separate basis to found their claim, namely Article 12 of Regulation 1612/68 as interpreted by the European Court of Justice (ECJ) in Baumbast Case C-413/99 [2002] ECR I-7091 (the second appellant has been attending education since December 2006 and the third appellant since 25 February 2008). Third, it was submitted that the decision to refuse them a permanent residence card breached their right to respect for private and family life under Article 8 ECHR. The IJ rejected the first two grounds for the same reason: she was not satisfied that Mr LDB was in the UK exercising Treaty rights. She also rejected the Article 8 claim because she concluded that the three appellants “can and should return to Argentina together and their family life can continue there”.
4. The grounds for reconsideration challenged her findings on each of these matters. It was argued that as Mr LDB was in receipt of Jobseekers Allowance, which has as a condition of its payment that the claimant shows he is looking for work and attending workshops, he should have been treated as a jobseeker for the purposes of reg 6 of the 2006 EEA Regs. Secondly, issue was taken with the IJ’s summary dismissal of the Baumbast point. Under Baumbast principles, it was said, all that had to be established was that the children of the EEA national must have installed themselves in a Member State during the exercise by their parent or parents of rights of residence as a migrant worker – it did not matter that the parent concerned had ceased to be a migrant worker subsequently. As regards Article 8, it was contended that the IJ had failed to take sufficient account of the fact that the children had been in the UK for over five years (over seven years in the case of the second appellant) and that both had had health difficulties.
5. At the hearing the parties were asked to consider the effect of two recent Advocate General (A-G) Opinions in London Borough of Harrow v Ibrahim Case C-310/08 (A-G Mazák) and Maria Teixeira v London Borough of Lambeth Case C-480/08 (A-G Kokott).
6. Mr Avery said that he was prepared to accept for the purposes of this appeal that the Opinions of the two Advocates General represented the correct legal position.
7. In submissions to us Miss Appiah pointed out that the IJ’s apparent finding that Mr LDB had never worked was contrary to the evidence she herself accepted showing he had worked in August 2007. In any event he had clearly been a jobseeker during September 2002 to November 2003; that can have been the only basis on which the first (and second) appellant was granted a residence card. The IJ had also accepted in para 21 that Mr LDB was (now) “looking for work”. She said that she accepted that the third appellant could not qualify for permanent residence because of his age, but it would clearly be contrary to Article 8 to allow the first two appellant’s appeals but not his too. The IJ’s treatment of Article 8 failed to approach matters relating to the children in line with Beoku-Betts [2008] UKHL 39.
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Mr Avery sought to defend the IJ’s decision. Given that the IJ found Mr LDB to be a wholly unreliable witness she was quite entitled, Mr Avery maintained, to find that he had never exercised Treaty rights by working and that at best he was a jobseeker for EEA purposes only for a relatively short period. The IJ had weighed all the circumstances of the family and had reached defensible conclusions.
Legal Framework
9. The requirements of the 2006 EEA Regulations relevant to this case are as follows:
‘Qualified person’
6-(1) In these Regulations, ‘qualified person’ means a person who is an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—
(a) he is temporarily unable to work as the result of an illness or accident;
(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and—
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c) he is involuntarily unemployed and has embarked on vocational training; or
(d) he has voluntarily ceased working and embarked on...
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