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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> LB and MB (dependants of absent Community nationals) Colombia [2006] UKAIT 00015 (09 February 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00015.html Cite as: [2006] UKAIT 15, [2006] UKAIT 00015 |
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LB and MB (dependants of absent Community nationals) Colombia
[2006] UKAIT 00015
Date of hearing: 23 January 2006
Date Determination notified: 09 February 2006
LB and MB |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
Where a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 leaves the United Kingdom, Article 6(2B)(b) does not confer a right to remain on all his dependants. Only the children or descendants of the qualified person can remain in this country for the purposes of pursuing an educational course. The reference to "dependants" does not introduce a wider class of persons who have such a right.
'... that no sensible distinction can be drawn as regards the content of the rights enjoyed by children who are family members of a worker. In short, once Community law defines a child as a family member of a worker it matters not whether such a person is defined in that way through Article 10.1 or 10.2 of EC Regulation 1612/68.'
'The Union Citizen's departure from the host member state or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host member state and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies'.
'that the principle of equal treatment enshrined in Community law must ensure as complete an integration as possible of workers and members of their families in the host country and that therefore an interruption in a family members residence in that country must not prevent him from continuing his studies there.'
Reliance was also placed on Carmina di Leo (C-308/89) [1990] ECR I-4185 in particular at paragraph 13:
"It must also be borne in mind that the aim of Regulation 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker's family in the society of the host country. If such integration is to be successful, it is essential for the child of a Community worker who resides with his family in the host Member State to have the opportunity to choose a course under the same conditions as a child of a national of that state."
'If the other person has ceased to be a qualified person on ceasing to reside in the United Kingdom, the persons are –
(a) his spouse or his divorced spouse, provided she is the primary carer of their dependent child who is under nineteen and attending an educational course in the United Kingdom; and
(b) descendants of his or of his spouse who are under twenty-one, or are their dependants, provided that they were attending an educational course in the United Kingdom when the qualified person was residing in the United Kingdom and are continuing to attend such a course.'
Under 6(2D) it is provided that a person to whom paragraph 2(B) applies 'shall be treated as the family member of a qualified person, notwithstanding that the other person has ceased to be a qualified person.'
'has been employed in the territory of another member state shall be admitted to that state's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that state, if such children are residing in its territories. Member states shall encourage all efforts to enable such children to attend these courses under the best possible conditions.'
'Furthermore, the right of "his spouse and their descendants who are under the age of twenty-one years or are 'dependants' to install themselves with the migrant worker must be interpreted as meaning that it is granted both to the descendants of that worker and to those of his spouse'.
As is pointed out by Mr Sheildon, in order to be consistent with the appellants' interpretation, it would be necessary to add the words 'or any of their dependants' to the end of this sentence.
'The Union citizen's departure from the host member state or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host member state and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.'
As Mr Sheildon submits, it has been expressly decided to reject the extension of the scope of Article 12 in the manner advanced on behalf of the appellants.
Signed Date
G. Warr
Senior Immigration Judge