W and another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Sedley,Lord Justice Dyson |
| Judgment Date | 09 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1494 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2006 |
| Docket Number | Case No: C5/2006/1004 |
[2006] EWCA Civ 1494
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Sedley and
Lord Justice Dyson
Case No: C5/2006/1004
HX/22284/2003 & HX/34961/2002
Mr Manjit Gill QC Mr Ramby de Mello and Miss Christa Fielden (instructed by The Central London Law Centre) for the Appellants
Miss Marie Demetriou (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Facts and the nature of the case
The first appellant [W] and his partner, the second appellant [X], are citizens of the Peoples' Republic of China. They object to that country's policies with regard to child-bearing and the age of marriage. They left China in May 2001 and travelled direct to Holland, where they did not regularise their immigration position. They then entered the United Kingdom illegally on 20 May 2001. In November 2001 X went to the Republic of Ireland, being followed thereafter by W. Again, as the AIT found, there is no reason to think that their entry to that country was legal under its domestic law. Their child [Q] was born on 20 December 2001. The parents, with Q, re-entered the United Kingdom in January 2002. Subject to the issues to be discussed in this appeal, that entry was also illegal. W and X thereafter made applications for asylum. Both of those applications were rejected, and are not appealed.
The matter before the IAT and before this court concerned the position of Q, and the effect of Q's status on the right of W and X to remain in this country. At the time at which Q was born the Republic of Ireland applied the jus soli in nationality issues, with the result that anyone born in the Republic (or even in that part of the United Kingdom that is Northern Ireland) is a citizen of the Republic, irrespective of their parents' nationality; status; or length of residence and lack of intention to remain in the Republic. Q is therefore a citizen of the Republic and thus also, by article 17 of the EC Treaty, a citizen of the European Union [EU]. Put shortly for the moment, W and X assert that since Q cannot assert her rights of free movement within the EU without their assistance, they are entitled to bring her to the United Kingdom for that purpose, and to stay here, even though absent those considerations their presence in this country would be illegal under English domestic law.
The law
3. The Community law that we have to apply is to be found in article 18 of the EC treaty as supplemented by Directive 90/364, and expanded by the ECJ in Case C-200/02 Chen. The legislative provisions are as follows:
Article 18 EC provides that:
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 this Treaty and by the measures adopted to give it effect.
Article 1 of Directive 90/364 provides:
1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.
The resources referred to in the first subparagraph shall be deemed sufficient where they are higher than the level of resources below which the host Member State may grant social assistance to its nationals, taking into account the personal circumstances of the applicant and, where appropriate, the personal circumstances of persons admitted pursuant to paragraph 2.
Where the second subparagraph cannot be applied in a Member State, the resources of the applicant shall be deemed sufficient if they are higher than the level of the minimum social security pension paid by the host Member State.
2. The following shall, irrespective of their nationality, have the right to install themselves in another Member State with the holder of the right of residence:
(a) his or her spouse and their descendants who are dependents;
(b) dependent relatives in the ascending line of the holder of the right of residence and his or her spouse.
4. The right of movement and residence of a citizen of the EU is therefore subject to two pre-conditions: (i) cover by sickness insurance in respect of all risks in the host state; (ii) possession of resources sufficient to avoid becoming a burden on the social assistance system of the host state. Those are logical requirements for the exercise of the right under article 18. The EU citizen does not need to rely on article 18 in order to install himself in another member state unless he is not an economic operator, assumed to contribute to the economy of the host state. If he is in that position, he will have a right of entry in any event either under article 39 as a worker; or under article 43 as a self-employed person; or under article 49 as a provider of services. Those who do not make that contribution, the article 18 cases, are thus reasonably required to establish that they will nonetheless not be a burden on the host state.
5. Directive 90/364 is drafted with an adult citizen in mind, and those covered by article 1.2, as dependents of the EU citizen, are the typical dependents of an adult. In Chen the ECJ had by jurisprudence to expand that regime to accommodate the case of an infant EU citizen who could not assert her rights without the presence and assistance of people who, far from being her dependents, were, as it was put in argument before us, her custodians. That case also concerned a child born to Chinese parents in territory to which the Republic of Ireland extended the jus soli, and therefore a citizen of the EU. Her mother sought to establish herself in the United Kingdom on the basis of being the custodian of the child. An important difference between Chen and our case was that it was not argued in Chen that the presence of the mother in the United Kingdom was otherwise unlawful.
6. The ECJ recognised that the mother could not take advantage of article 1.2 of Directive 90/364 because she was not a dependent of her child. The court however held, at its �45, that:
A refusal to allow the parent, whether a national of a member state or a national of a non-member country, who is the carer of a child to whom art 18EC and Directive 90/364 grant a right of residence, to reside with that child in the host member state would deprive the child's right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer.
That meant that the mother could enter in that capacity and for that purpose but, as the court also held, subject to the Directive's regime for the protection of the host state. In the specific case of Chen, therefore, the court regarded it as relevant that the child had both health insurance and sufficient resources, provided by her mother, not to become a burden on the host state.
7. The ECJ did not deal specifically with whether the accompanying carer or carers needed to have health insurance, or sufficient resources so that they themselves, as opposed to the child, did not become a burden on the host state. However, in both those cases I with respect find compelling the treatment of the IAT at �� 14 and 16 of its Determination:
As the Court pointed out in Chen, the accompanying parent in circumstances like this is not claiming under the provisions of Article 1 of Directive 90/364 because the parent is not dependent upon the child. It therefore follows that the Directive's requirements in respect of medical insurance do not apply precisely to the accompanying parents. But, as Chen establishes, the residence of the accompanying parents in the Member State is simply a consequence of the child's right. And the child's right is a right to reside only in such circumstances as will not place on the Member State a financial burden arising out of his residence. When the person exercising the right of residence is an adult, this result is secured by the requirement that accompanying dependent family members also have medical insurance. We think it inconceivable that a similar requirement does not apply to the family members who accompany under the Chen principle and are not dependent on the person exercising the right of residence. If it were otherwise, the exercise of the right of residence would in fact impose a financial burden on the Member State.
The next requirement we consider is that of sufficient resources generally. Again, so far as Chen was concerned, there was no doubt that the parents had sufficient resources for themselves and for the child. The Court expresses the requirement in terms again based on Directive 90.364...
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