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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> MJ and others (Art.12 Reg.1612/68, self sufficiency?) [2008] UKAIT 00034 (21 April 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00034.html Cite as: [2008] UKAIT 34, [2008] UKAIT 00034 |
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MJ and others (Art.12 Reg.1612/68, self sufficiency?) [2008] UKAIT 00034
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 28th February 2008
Date Determination notified: 21 April 2008
Before
SENIOR IMMIGRATION JUDGE SPENCER
Between
MJ SJ NJ PJ |
APPELLANTS |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
Although Article 12 of Regulation EEC 1612/68 was not repealed by Directive 2004/38/EC, any rights which the family members of an EEA national may have under it after the EEA national has ceased working but remained in the United Kingdom are not unconditional but subject to demonstrating self sufficiency and the possession of comprehensive sickness insurance in the United Kingdom.
"(1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
(3) A person satisfies the conditions in this paragraph if
(a) he is the direct descendant of
(i) a qualified person who has died;
(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or
(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and
(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.
(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).
(7) In this regulation, "educational course" means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers.
"
1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
3. 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."
"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).
It is of relevance to note that these provisions require the persons concerned to be workers or self-employed or if otherwise entitled to be in the United Kingdom to be self sufficient and to have comprehensive sickness insurance. Although the first named appellant was in employment there was no evidence before the immigration judge that the appellants had comprehensive sickness insurance.
The children of a national of a Member State who is or 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 territory.
Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions."
"It might be thought that the Court's recognition of Mrs B's right is some indication of the existence and scope of the second appellant's right in this appeal. It is not. Whilst the case does illustrate the Court of Justice's approach to children when exercising their EU rights to reside and the need for them to have their parent/carer with them, Mrs B's right was derived from her daughter's free-standing right under Article 12 of Council regulation No 1612/68 as the child of a former EU national worker. Neither her right, nor that of her daughter, depended upon Article 18 and Directive 90/364. Hence, the element of, and need to establish, 'self-sufficiency' was not present."
"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 this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251."
"What is noticeable is the persistent theme in the Directives and the jurisprudence of the Luxembourg court that the right of residence under Article 18 is not unfettered. In particular, there is a recognition of the principle that the exercise of this right should not place an unreasonable burden on the public finances of the host state. Hence the regular requirement that the person in question should have sufficient resources to avoid becoming such a burden, unless he is in or seeking employment or is self-employed and thereby earning such resources himself. Directive 90/364 includes amongst its recitals the following:
"Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State "
The same words appear in the recitals to Directive 90/365 and 93/96, and recital 10 to the recent Directive 2004/38 on freedom of movement and residence states:
"Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of 3 months should be subject to conditions."
In paragraph 22 he said:
"In the case of Chen [2004] ECR 1 9925, the European Court of Justice stated at paragraph 32:
"Moreover, the limitations and conditions referred to in Article 18 EC and laid down by Directive 90/364 are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the member States. Thus, although, according to the fourth recital in the preamble to Directive 90/364, beneficiaries of the right of residence must not become an "unreasonable" burden on the public finances of the host Member State, the Court nevertheless observed that those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the principle of proportionality."
The Court there properly emphasises that the rights under Article 18 are expressly stated to be "subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect": see Article 18(1). These measures include the various Directives to which I have referred and which contain various restrictions on the right of residence. In particular, Directive 90/364 reflects the requirement of "sufficient resources to avoid becoming a burden" on the host state and, subject to that condition, provides for a right of residence to nationals of member states
"who do not enjoy this right under other provisions of Community law."
Yet if Mr Bedford is right, this Directive and its restrictive requirement have very little, if any, role to play, because Article 18 itself confers an unfettered right of residence. His argument would rob Directive 90/364 of any real application. That does not make sense."
"28.As a preliminary point, it must be borne in mind that the right of nationals of one Member State to reside in the territory of another Member State without being engaged in any activity, whether on an employed or a self-employed basis, is not unconditional. Under Article 18(1) EC, the right of every citizen of the Union to reside in the territory of the Member States is recognised subject to the limitations and conditions imposed by the Treaty and by the measures adopted for its implementation (see, to that effect, Case C-456/02 Trojani [2004] ECR I-7573, paragraphs 31 and 32, and Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 26).
29. Among those limitations and conditions is the provision made in the first subparagraph of Article 1(1) of Directive 90/364, under which the Member States may require citizens of the Union who are not economically active and wish to enjoy the right to reside in their territory, to ensure 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.
30. The right of residence enjoyed by the members of the family of an economically non-active citizen of the Union under Article 1(2) of Directive 90/364 is linked to the right enjoyed by that citizen under Community law".
"What is being said in this case is quite different. Here, it is said that the parent/carer is entitled to be in the UK and work because only then will the child be self-sufficient and hence establish her EU right of residence. Thus, the family member's presence in the UK (and right to work) is relied upon not in order to avoid a 'clog' or 'chill' on the exercise of the right of the EU national child but rather in order to create that very right itself the right from which the family member then seeks to derive his own right to reside as her carer/parent. Only if the parent/carer resides in the UK with the EU national child can it be said that the child has an EU right at all. The argument is then exposed for what it is entirely circular."
Decision
Signed
Senior Immigration Judge Spencer