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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> ER and Others (EU national; self-sufficiency; illegal employment) Ireland [2006] UKAIT 00096 (18 December 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00096.html Cite as: [2006] UKAIT 00096, [2006] UKAIT 96 |
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ER and Others (EU national; self
-
sufficiency
; illegal employment) Ireland [2006] UKAIT 00096
Date of hearing: 26 September 2006
Date Determination notified: 18 December 2006
ER and Others |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
An EU (EEA) national child cannot establish a right of residence based upon self
-
sufficiency
where the resources relied upon are derived from a parent's employment or
self
-employed when there is no lawful basis for that parent's residence or employment (or
self
-employment) in the UK. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.
The relevant EU and domestic legal provisions
"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."
"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:
(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 the period of residence and have comprehensive sickness insurance in the host Member State; ".
"(c) "self
-sufficient person" means a person who has
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom; ... ."
"(4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system."
"4(2) For the purposes of paragraph (1)(c), where family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person
(a) the requirement for that person to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if his resources and those of the family members are sufficient to avoid him and the family members becoming such a burden;
(b) the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover."
"... 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 Article 18 EC 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 and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence ... ."
"257C The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA nationalself
-sufficient child are that the applicant:
(i) is:
(a) the primary carer; or
(b) the parent; or
(c) the sibling,
of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as aself
-sufficient person; and
(ii) is living with the EEA national or is seeking entry to the United Kingdom in order to live with the EEA national; and
(iii) in the case of a sibling of the EEA national:
(a) is under the age of 18 or has current leave to enter or remain in this capacity; and
(b) is unmarried, has not formed an independent family unit and is not leading an independent life; and
(iv) can, and will, be maintained and accommodated without taking employment or having recourse to public funds; and ."
"Leave to enter or remain is to be subject to a condition prohibiting employment and recourse to public funds."
Right of appeal
The need for comprehensive health insurance
The appellants' case
Child benefit issue
(i) can the appellants rely upon the income arising from the lawful employment of the parents up to the end of July 2004?;
(ii) can the appellants rely upon the income arising from their continued employment after July 2004 when they had no leave to remain or permission to work?
'Lawful employment'
"42. First, the presence of the child's parents in the UK is not only necessary for her to exercise her right of residence but also to establish it. This is so whether one looks at the income derived from their current employment or, if permitted despite the Immigration Rules, in the future. The underlying purpose of recognising the derivative rights of family members to accompany or join an EU national exercising Treaty rights in another EU country is not engaged here anymore than it was in GM and AM. In our view, the EU national's right must be established independently of the presence of the family members in the UK before they may derive any rights from EU law themselves. This, it may be said, is because the right is the right of the EU national. It is an individual right, not a family right (although it has consequences for the family); and it must be established on an individual, not a family basis.
43. Second, we do not see any basis for deciding that income derived from the first and second appellants' current employment can establish their daughter's right to reside. The circularity in establishing the child's rights and then the parents' rights is no less apparent in these appeals. Here, the child'sself
-
sufficiency
is dependent upon her parents working. They only have a temporary basis for doing so for so long as they have limited leave and are permitted to work. Once that leave runs out, there would be no lawful basis for working. Indeed, it seems to us that it is only because of these applications and subsequent appeals that the leave did not terminate in December 2005 but was continued under s.3C of the Immigration Act 1971. The only basis for their right to work would then have to be derived from EU law. The moment that occurred and they derived a right to reside and - it would have to be said - to continue working, the position would be indistinguishable from that in GM and AM. The circularity would be complete their right to work would now sustain the child's right and through her their own derived right would continue.
44. Third, our conclusion accords with a proper understanding of the notion of 'self
-
sufficiency
' and the distinction between free movement in reliance upon economic and, alternatively, non-economic rights.
45. An EU national who claims to beself
-sufficient is not asserting a right to enter and reside in another EU state on the basis of economic activity in that country. If he were, he would be seeking to enter, for example, as a worker or
self
-employed person. Rather, he relies upon his resources which exist independently of any economic activity in the host Member state. Once that is established, his family members have a derivative right to accompany or join him. If they did not, the EU national's right of free movement might be inhibited or effectively denied to him. In addition, the central EU legislative instruments give family members a right to work in that the host Member state. But, their right to work is not a recognition of the right to engage in economic activity per se. Rather, it is simply a reflection of the underlying principle of EU law because otherwise they (and hence the EU national) might be inhibited from moving within the EU if family members were not allowed to carry on, what for them, is an important aspect of their everyday lives. The economic activity of the family members does not establish nor could it in the context of an EU national worker or
self
-employed person the EU national's right. That arises a priori and independently of any economic activity by the EU national or his family in the host EU country.
46. By contrast, in the Chen-type case the EU national can only establish his right by reliance upon economic activity in the host Member state, not, of course, economic activity by himself but rather by his family members. We see no reason to distort the usual situation simply because the EU national is a child and is dependent upon others for support and, unusually, is already present in the host EU country with his family members rather than seeking to enter it with is family. Here too, the right of free movement based uponself
-
sufficiency
cannot depend upon resources derived from employment engaged in by the EU national or his family members in the UK.
48. In the result, therefore, the reasoning of the Tribunal in GM and AM is applicable where an EU national child places reliance upon income derived from a parent lawfully working in the UK during a period of limited leave restricted for a specific purpose or, which is not this case, who is on temporary admission and not prohibited from working. In such circumstances, a Member State is entitled to restrict the rights of employment of non-EU nationals, in particular to limit the duration of their permission to work just as it is entitled effectively to prohibit their ability to work (see, W(China) and X(China)). When it does so, that individual cannot derive a right to reside as a "family member" of an EU national because that income cannot be taken into account in order to establish the EU national's right of residence on aself
-sufficient basis. "
'Illegal' employment
"16 As interpreted by the ECJ in Chen, the article 18 right of [the child] and the associated right of her custodians can only be lawfully asserted under the strictly limited conditions imposed by Directive 90/364. Those conditions are pre-conditions not merely to the exercise but also more fundamentally to the existence of the right in any particular case: article 18 stating in terms that "the right" to move and reside is subject to the limitations and conditions laid down in, e.g., Directive 90/364. The right accordingly does not exist if [the child] does not have access to the relevant resources. There is no suggestion that under article 18 the host state is obliged to take positive steps to make resources available to an entering EU citizen: [Counsel for the appellants] understandably drew back from any suggestion that the state would be obliged to provide support for a custodian without resources in the shape, for instance, of disablement benefit. By the same token, the state is not obliged to adjust its domestic law in order to make available to the EU citizen resources that would not otherwise be available to him, so that he can fulfil the pre-condition to the existence in his case of the article 18 right: the right which has to exist before he can require the state to adjust its domestic law in deference to it."
"By the same token, [counsel for the appellants] said, [the mother], as not the dependent but the Chen-recognised custodian of [the child], should be entitled to take up employment. But that requires it to be established that [the child] is indeed entitled to residence within the United Kingdom, and she is not so entitled, under Chen, unless her custodian can meet the resources requirement of the Directive."
"Neither the child nor the parents can lawfully work here, unless and [counsel for the appellants] contends that this is the case the child's status makes it unlawful to deny the parents the right to work. There would be force in this argument if the child herself had a Treaty right to work here; but she has none, and her parents cannot therefore claim a derivative right to work. In this regard they are not in the same position as the claimant in Chen, who had resources originating in China which made her, and thereby the child,self
-sufficient in the UK. [Counsel for the appellant's] argument on
self
-
sufficiency
, if sound, would have to apply to any EU citizen seeking entry under Art. 18 EC and would defeat the prior conditions envisaged by the Article itself and explicitly enacted by the Directive."
"It appears that [the father's] employment exposes both himself and his employer to criminal sanctions. In any event as a matter of fact, in such circumstances, the employment and the funds deriving from it cannot be regarded as anything other than of an ephemeral nature. Employment which has no proper or lawful prospect of permanence cannot be regarded as providing sufficient resources for the maintenance either of [the child] alone or of her and the Appellants. It is not suggested that any other funds are available to the family. Accordingly, [the child] is not in a position to exercise the right of residence secured by Directive 90/364 because she does not have sufficient resources to prevent herself becoming a burden on the social assistance system of the host Member State during her period of residence. If, as we think, that requirement applies also to [the parents], they also fail to fulfil it."
Conclusion
Other grounds
Decision
A GRUBB
SENIOR IMMIGRATION JUDGE
Date: