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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

    ASYLUM AND IMMIGRATION TRIBUNAL

    Date of hearing: 26 September 2006

    Date Determination notified: 18 December 2006

    Before

    Senior Immigration Judge Grubb
    Senior Immigration Judge Southern

    Between

    ER and Others
    APPELLANT
    and
     
    Secretary of State for the Home Department RESPONDENT

    For the Appellants: Mr B Cox, Counsel of the Law Centre (NI)
    For the Respondent: Mr A Payne, Counsel instructed by the Treasury Solicitor

    DETERMINATION AND REASONS

    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.

  1. This reconsideration concerns the appeal of an EU national child, his parents and sister each of whom claims a right of residence in the United Kingdom under EU law. The first and fourth appellants are married and are nationals of the Philippines (the mother and father). The third appellant is their son who was born in Northern Ireland on 13 May 2004 and so, by virtue of the jus soli rule then applied by the Republic of Ireland to questions of nationality, is a citizen of the Republic of Ireland. The second appellant is the daughter and sister respectively of the other appellants and is also a citizen of the Philippines.
  2. The facts are as follows and do not appear to be a matter of dispute. The family is from the Philippines. The first appellant (the mother) was issued with a work permit in Manila on 23 July 2002 and entered the United Kingdom on 30 July 2002. She took up employment as a senior care assistant with a private nursing home (Strathearn Court Nursing Home) in Belfast, Northern Ireland which was owned by a company called Four Seasons Health Care Ltd. On 18 August 2003, the fourth appellant (the father) and the second appellant (their daughter) came to live with her in Belfast. On 6 September 2003, her husband also began to work for Four Seasons.
  3. On 13 May 2004, the third appellant – the son of the first and fourth appellants – was born in the Ulster Hospital in Dundonald. As a result, he is an Irish national and he was issued with a passport by the Republic of Ireland on 3 July 2004.
  4. The mother's leave to remain and work permit was due to expire in July 2004. The same is also true for the father. An extension was sought but it seems that all did not go smoothly and her leave and work permit were not renewed. From the end of July 2004 (the precise date is not clear from the papers), the appellants have been in the UK without leave. The mother was told by her employers that she would have to return to the Philippines. However, the mother and father continued to be employed by Four Seasons and that was the situation at the date of the Secretary of State's decision and has remained so ever since.
  5. On 16 August 2005, an application was made on behalf of the third appellant for a residence permit under EU law. He claimed a right of residence in the UK under Article 18 EC Treaty and Directive 90/364 as a self-sufficient EU citizen. Applications were also made on behalf of his parents and sister for leave to remain as his family members under paragraph 257C of the Immigration Rules (Statement of Changes in Immigration Rules, HC 395).
  6. On 13 January 2006, the Secretary of State refused the applications on the basis that he was not satisfied that the appellants would be able to support themselves without recourse to public funds or by taking employment. The latter being prohibited for the parents by virtue of paragraphs 257C and 257D of the Immigration Rules. The appellants appealed. In a determination promulgated on 17 July 2006, Immigration Judge S Gillespie dismissed the appeals. The appellants sought reconsideration which was ordered by a Senior Immigration Judge on 31 July 2006.
  7. The relevant EU and domestic legal provisions

  8. We begin with the principal EU and domestic legal provisions that govern this appeal. These are fully set out in the Tribunal's decision in MA (EU national; self-sufficiency, lawful employment) Bangladesh [2006] UKAIT 00090 whose text we gratefully adopt here. As in that case, throughout this determination we refer to the rights of free movement and residence of EU nationals although the EEA Regulations in fact apply to the slightly broader category of "EEA national" as defined in regulation 2 of the EEA Regulations 2006.
  9. The third appellant (as a young child) does not rely upon any economic right to move to and reside in the UK as, for example, a worker or self-employed person. Rather, he relies upon the right of free movement and residence of an EU national found in Article 18 of EC Treaty which is in the following terms:
  10. "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."
  11. As Article 18(1) makes clear, the right to move and reside is subject to limitations and conditions laid down in measures adopted to give it effect. Those measures were originally laid down in EEC Directive 90/364 but were replaced with effect from 30 April 2006 by Directive 2004/38.
  12. Article 7(1)(b) of Directive 2004/38 states that:
  13. "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; … ".

  14. The Directive further provides that the exercise of the right of residence should not impose an "unreasonable burden" on the social assistance system of the host Member State during an initial period of residence for three months (Recital 10 and Art 14(1)) or during the extended period of residence beyond three months (Recital 16 and Art 14(2)).
  15. In addition, Article 7(2) of the Directive confers a right of residence upon certain persons (not themselves EU nationals) who are family members of an EU national who has a right of residence. For present purposes, those family members include direct relatives in the ascending line providing they are dependent upon the EU national (Art 2(2)(d)). Likewise, the Directive makes provision for other family members, for example siblings but again only providing they are or were dependent upon, or members of the household of, the EU national in another EU country (Art 3(2)).
  16. Directive 90/364 was transposed into UK law by the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (the "EEA Regulations 2000"). However, with effect from 30 April 2006, the latter were replaced by the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (the "EEA Regulations 2006") in order to give effect to Directive 2004/38. The EEA Regulations 2006 take effect retrospectively. Schedule 4, paragraph 5(1) of those Regulations provides that any appeal pending on 30 April 2006 against an EEA decision taken under the 2000 Regulations shall be treated as a pending appeal against a corresponding EEA decision under the EEA Regulations 2006. As a consequence, they are the relevant domestic provisions to be applied by us and the third appellant's appeal is treated as being an appeal against a refusal to issue a registration certificate.
  17. The EEA Regulations 2006 define those EEA nationals who are "qualified persons" and entitled to recognition of their free movement rights. Regulation 6(1) includes within that category "a self-sufficient person". In turn, Regulation 4(1)(c) of the EEA Regulations 2006 states that:
  18. "(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; ... ."

  19. It is this provision which is relied upon by the third appellant. The level of resources required is that which is enough to avoid eligibility to social assistance in the UK. Regulation 4(4) states:
  20. "(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."

  21. Thus, the right of movement and residence is dependent upon establishing (1) self-sufficiency in the sense of sufficient resources to avoid reliance on the social security system; and (2) that comprehensive health insurance is in place for the whole family (see, Ali v SSHD [2006] EWCA Civ 484 and now, W(China) and X(China) v SSHD [2006] EWCA Civ 1494).
  22. In keeping with Directive 2004/38, the EEA Regulations 2006 confer a derivative right of free movement and residence upon certain family members of an EU national exercising a right such as that found in Article 18 EC Treaty. Where that is the case, the whole family (including the family members) must be self-sufficient. Regulation 4(2) requires that the EU national's "family members" are also covered by comprehensive sickness insurance and the total resources of that individual and his family are adequate to avoid them becoming a burden on the social assistance system. It provides as follows:
  23. "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."

  24. Apart from spouses (and civil partners), the rights of "family members" apply, for example, to direct ascendants (such as parents or grandparents) of an EU national but only if they are dependent upon that EU national (see, reg 7(1)(c) and Art 2(1)(d) respectively). Likewise, as we have seen, siblings would only be covered if they are or were dependent upon, or members of the household of, the EEA national in another EEA country (reg 8(1) and (2)). That is not the situation here. It is, of course, not suggested in this case that the parents or sister are dependent upon the first appellant. Indeed, it is the converse here. Thus, only the third appellant is directly covered by the Directive or EEA Regulations 2006. The other appellants rely upon the Court of Justice's decision in Chen.
  25. Chen also concerned an EU national child living in the UK who had Irish nationality as a result of being born in Northern Ireland. She lived with her parents who were Chinese nationals. As a result of income derived from her parents' Chinese business, the child's mother had sufficient resources to support herself and the child. They also had comprehensive health insurance. As regards the child, the Court of Justice held that she had a right of residence as a self-sufficient person by virtue of Article 18 of the EC treaty and (the then applicable) Directive 90/364. It was not necessary that she should have the resources personally. It was sufficient that there were adequate resources available to her from her mother that made her self-sufficient. As regards her mother (who was her primary carer), the Court recognised that she was also entitled to reside in the UK in order to permit the child to exercise or enjoy its own EU right. The Court of Justice said (at para [45]):
  26. "... 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 ... ."

  27. In relation to self-sufficiency, there is no doubt that the Court of Justice required that the child and her carers had adequate resources not to be a burden on the social security system and were covered by comprehensive health insurance (see GM and AM, at paras [41]-[42] andnow, W(China) and X(China) v SSHD).
  28. Finally, we set out, as relevant to this appeal, paragraphs 257C and 257D of the Immigration Rules which deal with the requirements for the grant of leave to enter or remain as a parent/carer or sibling of what might be termed a "Chen child".
  29. "257C The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA national self-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 a self-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 …."
  30. Paragraph 257D states that
  31. "Leave to enter or remain is to be subject to a condition prohibiting employment and recourse to public funds."

    Right of appeal

  32. There is no doubt that the third appellant – who was refused a residence document as an EU national – has a right of appeal against that decision (now) under regulation 26 of the EEA Regulations 2006. The position is less clear for the remainder of the family. In each of the decisions made in respect of the parents and sister to refuse them leave to remain under paragraph 257C, the Secretary of State's decision letter points out that there is "no right of appeal against this decision". That was disputed by those representing the appellants in a letter dated 31 January 2006 but, so far as we can tell, was not raised again. It was not raised before the immigration judge or before us. In preparing this determination it has become clear to us that the Secretary of State was in fact correct in relation to the first, second and fourth appellants.
  33. Each of their applications for leave to remain was made when the individual did not have existing leave to enter or remain in the UK – that leave ran out in July 2004. Consequently, these are not variation appeals. As such the decisions do not fall within the definition of an "immigration decision" in section 82 of the Nationality, Immigration and Asylum Act 2002. The position would be rescued if they fell within the definition of "family members" under the EEA Regulations 2006. The decisions made against them could then be construed as "EEA decisions" because, however expressed by the Secretary of State in reaching his decisions, they would concern entitlements to an EEA document confirming their right of residence under the EEA Regulations 2006 (see definition of "EEA decision" in reg 2(1)). However, as we have already stated, they are not "family members" of an EEA national as defined in those Regulations which are, therefore, not applicable to them. Their rights, if any, derive directly from the principal EU legislation.
  34. Although this was not an issue taken before us, it relates directly to the Tribunal's jurisdiction which cannot be established by agreement of the parties or by concession. We cannot turn a 'blind eye' to it. It follows that the only reconsideration that is before us is that of the third appellant – the EU national. However, we do not consider that this will ultimately affect the practical outcome for all the appellants as their EU rights are inextricably linked. If the third appellant is able to establish his right of residence, the rights of the other appellants will follow as a matter of course and, obviously, the converse is equally true. For this reason, it is convenient if we continue to refer to the family members as if they were the appellants in this appeal.
  35. Self-sufficiency

  36. The central issue in this case is whether the third appellant has established a right to reside in the UK based upon self-sufficiency. If he has, the rights of his parents and sister follow on the basis of the Chen decision.
  37. As we indicated earlier, the right of movement and residence is dependent upon establishing that the EU national and his family are (1) self-sufficienct in the sense of sufficient resources to avoid reliance on the social assistance system; and (2) covered by comprehensive health insurance.
  38. The need for comprehensive health insurance

  39. As regards the requirement for comprehensive health insurance, it is clear from a policy document at pages 49-50 of the appellants' reconsideration bundle that the family has been covered since 8 March 2006. Although it was not a point taken by the Secretary of State in refusing the applications, it seems that this element of the self-sufficiency requirement was at least satisfied at the date of the hearing before the immigration judge. That undoubtedly suffices (see, SGC and others (EEA – Date of Decision – 1999 Act) Ireland [2005] UKAIT 00179 at para [25]). In the light of this, we say no more about this requirement and move on to the issue of resources.
  40. The appellants' case

  41. Mr Cox provided us with a brief, but helpful, skeleton argument which he further developed in his oral submissions. He submitted that the immigration judge had erred in law in deciding that the appellants had failed to establish rights of residence under EU law. He submitted that the third appellant was a self-sufficient child who had a right of residence under EU law. Consequently, by virtue of Chen and another v SSHD (Case C-200/02) [2005] INLR 1, his parents and his sister also had established a right to reside.
  42. First, Mr Cox relied upon the income of the parents, initially earned lawfully – at a time when they were entitled to, and not prohibited from working. Although they ceased to have the right to work at the end of July 2004 when their leave and work permits ended, by that time the third appellant had established his right to reside under EU law. The prohibition in paragraphs 257C and 257D of the Immigration Rules could not operate unilaterally to prevent the parents from working once their son's right (and hence their own rights) were established. Adopting the argument of Ms Nuala Mole of the AIRE Centre London set out in her legal opinion at paragraphs 54 and 55, Mr Cox submitted that the prohibition on employment was an unlawful restriction as it did not pursue "the objective that [the appellants] should not be an unreasonable burden on the social assistance system."
  43. Second, as we understood Mr Cox's submissions, he also relied upon the continued earnings of the parents since July 2004 albeit that there was no lawful basis for them working during that time. He submitted that we should disregard the child benefit that the mother received in relation to the children. The latter, he submitted, did not impose an 'unreasonable burden' upon the social assistance system in this country.
  44. Child benefit issue

  45. We deal first with the argument that the first appellant has been in receipt of child benefit. It is accepted that she has tried to stop payment but has failed because she is entitled to it as of right. Mr Payne relied upon this as showing the family are not self-sufficient. We reject this argument.
  46. In our view, child benefit is not the type of benefit which falls within the prohibited category of "social assistance system of the United Kingdom" referred to in reg 4(2) and (3) of the EEA Regulations 2006. The latter means social security support which is paid by the state because the individual is unable to support themselves. The reference to the UK's "social assistance" system must be interpreted in the light of the purpose for which it was included, namely as a base-line to "self-sufficiency" in order to exclude those who are not able to support themselves. Regulation 4(4) of the EEA Regulations 2006 makes it clear that, in effect, what is required is sufficient resources to avoid eligibility for state support because of lack of resources. Often this will mean that the family's resources are such that they are eligible for income support. By contrast, child benefit is paid as of right to parents irrespective of their own resources: it is paid to the poor and the rich alike. It simply cannot be the case that an independently wealthy family of an EU national child would fail to be regarded as "self-sufficient" merely because they received child benefit payable to them as of right and which, as this case shows, they could not stop being paid.
  47. There is, however, a further point. Whilst our reasoning above deals with the EEA Regulations 2006 and the right of the third appellant, it does not directly deal with the cases of the other appellants who seek leave under paragraph 275C of the Immigration Rules as his parents or sister. Paragraph 257C(iv) requires that the other appellants be able to maintain and accommodate themselves "without…having recourse to public funds". Paragraph 257D states that a condition of any leave granted will be a prohibition on "recourse to public funds". Paragraph 6 of the Rules defines "public funds" to include "child benefit". Because of the mandatory nature of child benefit, the parents are, and will be, in receipt of public funds. Does this mean that they and the sister cannot meet the requirement of paragraph 257C? We think not. In their current circumstances, they are in receipt of public funds but they are not being maintained by recourse to them. They have sufficient resources from their income to support themselves without recourse to what they receive by way of child benefit. Assuming that continues, they meet the requirements of paragraph 257C(iv).
  48. We now turn to consider the income available to the family and whether that establishes that they are self-sufficient. Mr Cox's submissions invite us to consider the following issues:
  49. (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'

  50. What is said is that this income can be taken into account and establishes the self-sufficiency requirement. If this is correct, the immigration judge clearly made a material error of law in reaching his decision. Unfortunately, he made no findings whether their income would in fact be adequate to support them. That is a matter which we need only return to if we consider the immigration judge's determination to contain a material error of law.
  51. Mr Cox referred us to the Court of Justice's decision in Chen at paras [29], [30], [31] and [33]. He submitted that the Court had indicated that there could be no restrictions upon the origins of the resources (see in particular para [30] of the judgment). Likewise, he referred us to the Court of Justice's decision in Commission v Belgium where the income of the partner of an EU national was held to be relevant in assessing whether he was 'self-sufficient'. Mr Cox submitted that the Tribunal's decision in GM and AM (EU national; establishing self-sufficiency) France [2006] UKAIT 00059 was distinguishable. There, the Tribunal was concerned with an EU national child whose parent was not working but it was argued that he should be entitled to despite the prohibition in paragraphs 257C and 257D of the Immigration Rules. The Tribunal only concluded he could not succeed because the child's right had not been established since his father was dependent upon central NASS funding, being a failed asylum-seeker. Here, by contrast, the parents were working lawfully – they had an independent right to remain and work in the UK until the end of July 2004. Their income could therefore establish the family's self-sufficiency. Any prohibition upon them working was then contrary to EU law.
  52. Mr Payne, who represented the Secretary of State, provided us with a detailed and helpful skeleton which he put before us in relation to this and two other reconsiderations that were in our list. We intend no discourtesy if we do not set out his very full argument in detail. At root, he submitted that the appellants could not rely upon the 'lawful' employment period to establish self-sufficiency because by the date of the decision – and the hearing – the parents were not lawfully employed. He submitted that it was clear from the Court of Justice's decision in SSHD v Akrich (Case 109-01) [2004] INLR 36 and the Advocate General's opinion in Jia v Migrationsverket (Case C-1/05) (opinion given, 27 April 2006) that a third country national who was not lawfully present in a Member State could not derive any EU rights. He submitted that the appellants were, in effect, in pari materia with the appellants in GM and AM and the self-sufficiency of the first appellant could not be established by reliance on the income of the parents.
  53. We understand Mr Payne's submissions – which he also made in another reconsideration listed before us on the same day – to entail an acceptance by the Secretary of State that reliance may be placed upon income derived from employment pursuant to an independent right under national law to remain and work in the UK. If correct, then it is only the issue of whether reliance can be placed upon income derived from 'illegal employment' which arises in this case.
  54. It may well be correct that, as we should assess the situation as at the date of the hearing before the immigration judge, any rights which could have been derived from the lawful employment of the parents had, by that time, lapsed. We see considerable force in this argument. We prefer, however, to meet head on the argument that the parents' income obtained from lawful employment could in principle establish that their family was self-sufficient.
  55. The issue arose in a case heard by the Tribunal two weeks before the present one and now reported as MA and others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090. In that case, the Tribunal concluded that self-sufficiency could not be established by reliance upon income derived from lawful employment in the UK by the parents of an EU child who are in the UK on limited leave for a temporary and specific purpose or temporary admission in situations where the parents seek themselves to derive an EU right to reside as a consequence. The Tribunal dealt, in essence, with the same arguments presented in this case by Mr Cox and rejected them. The Tribunal's reasoning can be found at paragraphs [42]–[46] and [48]:
  56. "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's self-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 be self-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 upon self-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 a self-sufficient basis. "

  57. We agree with and adopt as our own the Tribunal's reasoning and conclusion in MA and others. Nothing we have heard in argument before us leads us to take a different view. Self-sufficiency cannot be established by reliance upon the income of family members of an EU national child who are lawfully employed or in business in the UK during a period of limited leave restricted to a specific purpose where the effect of that will be to create rights of residence in EU law not just for the EU national but also derivatively for those family members themselves. In this way, the decision in MA is a complete answer to Mr Cox's reliance upon the parents' income up to the end of July 2004. The latter income could not establish that the third appellant (their son) was self-sufficient and thus neither he, nor the other appellants, can thereby derive any right to reside in the UK.
  58. 'Illegal' employment
  59. What then of the parents' income obtained from their continued employment since July 2004? There is no doubt that they have continued to work without permission and, in that sense, their employment has been 'illegal'. We are driven to conclude that the parents' illegal income cannot establish their child's (and their own) right of residence based upon self-sufficiency for the following reasons
  60. First, if reliance cannot be placed upon income obtained lawfully by the parents, a fortiori it cannot be relied upon if derived from illegal working. Any other outcome would be inconceivable.
  61. Second, there is a substantial body of jurisprudence within the Court of Justice that eschews reliance upon EU rights where the individual has no lawful basis for being in the host Member State. Thus, for example, the Court has excluded from the purview of the Association Agreements, nationals of those countries who are seeking to take advantage of such an agreement but are unlawfully in the relevant EU country. Hence, in R v SSHD ex parte Kondova (Case C-239/99) [2001] ECR I-6427, the Court concluded that a Bulgarian national could not take advantage of the EU-Bulgarian Association Agreement in circumstances where she was an illegal entrant, having entered by deception. Likewise in R v SSHD ex parte Gloszczuk (Case C-63/99) [2002] INLR 357, the Court reached the same conclusion in relation to a Polish national who had entered the UK by deception and sought to rely upon the EU-Polish Association Agreement. An identical approach and outcome has recently been proposed by the Advocate General in his advisory opinion to the Court in R(Tum and Dari) v SSHD (Case C-16/05) (delivered on 12 September 2006) which concerned the EU-Turkish Agreement. It could, of course, be argued that these cases are entirely distinguishable as they concern the interpretation of Association Agreements and do not concern the free movement of EU nationals and their family members. Of course, care must be taken in directly reading across reasoning applicable in one context to another. Nevertheless, the Court of Justice's approach to establishing rights in the context of the Association Agreements shows, at least, that EU law does not encourage conduct which flouts domestic national immigration controls.
  62. Just such an approach is applied by the Court to EU nationals and their family members who seek to derive rights of free movement and residence. The leading case is Akrich. Mr Akrich was a Moroccan national who had been twice deported from the UK. He subsequently returned clandestinely and married a British national. He was again deported, on this occasion to Ireland where his wife now lived and worked. She returned to the UK and Mr Akrich sought entry on the basis that he was the spouse of a returning national who had been exercising EU rights in another Member State relying on R v SSHD, ex parte Surinder Singh (Case C-370/90) [1992] ECR I-4265. That latter case would undoubtedly have given rise to such a right were it not for Mr Akrich's irregular immigration status. Relying upon that, the Court held that Mr Akrich had no EU right to move to and reside in the UK. In order to benefit from an EU right of free movement as a family member, the individual must be lawfully resident in a Member State before he can claim a right of movement. Mr Akrich was not lawfully resident either in the UK which he had entered in breach of a deportation order or in Ireland. The Court emphasised that Mrs Akrich's right to work in Ireland or to return to the UK following that work could not be inhibited by the inability to be accompanied by her husband as they had no lawful basis for residence together in either country.
  63. The Court's decision in Akrich was considered by the Advocate General in his advisory opinion to the Court in Jia to which Mr Payne referred us. In that case, an EU national (a German citizen) was working as a self-employed person in another Member State (Sweden). Her husband, who was a Chinese national, was residing with her. The elderly mother of her spouse came from China to visit them on a visa valid for 90 days. During that time she made an application for a residence permit as a dependent family member of her son. The Advocate General concluded that Akrich was of general application. Access to the EU was a matter for the domestic law of the Member State through which the non-EU national sought entry. EU rights of free movement only applied to movement by an EU national and his family within the EU. A non-EU family member who was seeking entry could only claim a right of permanent residence under EU law if they were already lawfully resident in a Member State. The Advocate General reasoned that lawful residence required more than lawful presence. It required admission for at least a period of a year with a view to permanent residence; admission for a shorter period or for a specific temporary purpose would not do. On the facts, the applicant was not lawfully resident in Sweden as she was admitted only for a short time (90 days) and for the limited purpose of a visit. As a result, she could not claim a right to reside with her son and his wife under EU law: her rights were governed by Sweden's domestic immigration law.
  64. Mr Payne relied upon Akrich and Jia and the fact that the parents in this appeal have no lawful basis for residing in the UK. The Advocate General's opinion is a strong reaffirmation of Akrich and, indeed, patently goes beyond it when defining the scope of 'lawful residence'. That may or may not appeal to the Court of Justice. We also recognise that Akrich and Jia are not directly concerned with the establishment of an EU citizen's rights but only those of a non-EU family member. This appeal is, of course, concerned with both but principally that of the EU national from whom the other appellants derive their rights. That may be thought to be an important distinction. Given, however, that the rights here are inextricably bound up together, we consider that, if applicable, Akrich should be understood as denying the establishment of rights by both if based upon the illegal status of the family member. It would be wholly artificial to approach this sort of case otherwise. Mr Cox submitted that Akrich could be distinguished since the parents had (if only in the past) been lawfully resident and working in the UK. The fact that the parents were admitted lawfully does not disguise their illegal presence now and it is the latter which is at the heart of the Akrich decision. Indeed, if the Advocate General's opinion in Jia is followed by the Court, the distinction would have no arguable basis whatsoever. It would, we apprehend, further support the decision in MA where the parents of the EU national child are lawfully present on a temporary basis and for a specific limited purpose (including those on temporary admission).
  65. On the basis of Akrich and the other cases we have referred to, we have concluded that the appellants cannot establish EU rights of residence based upon income derived from employment or self-employment at a time when they have no lawful basis for residence in the UK or for working.
  66. Third, the appellants must fail as a result of the Court of Appeal's decision in W(China) and X(China) v SSHD [2006] EWCA Civ 1494. The case was decided after the hearing in this appeal. As it is a binding authority upon us and provides further support to a conclusion we had already reached, we did no consider it necessary to seek representations from the parties upon it.
  67. In that case, the appellants were partners and Chinese nationals. They entered the UK illegally and unsuccessfully claimed asylum. About six months later, they went to the Republic of Ireland where the female appellant gave birth to a daughter who as a result acquired Irish nationality. They returned to the UK and, in reliance upon Chen, they claimed an EU right of residence based upon self-sufficiency. They relied upon income earned by the male partner (father) – employment for which he did not have permission and so, in the sense we have used it, his employment (and resulting income) was 'illegal'. The Court of Appeal held that the IAT had been correct to decide that the parents had failed to establish that their child was 'self-sufficient' and hence she - and consequently they also – had no rights of residence in the UK. The Court of Appeal offered three reasons. First, the parents did not have medical insurance and this was a requirement of self-sufficiency under EU law. Second, reliance could not be placed upon the father's income derived from employment when he had no lawful basis for the work. Buxton LJ (with whom Sedley and Dyson LJJ agreed) considered that the point was a short one (at para [16]):
  68. "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."

  69. Counsel for the appellants had argued that Article 2.2 of Directive 90/364 (the predecessor in substance of Article 23 of Directive 2004/38) entitled the father of the child to work. Buxton LJ gave this argument short shrift (at para [18]):
  70. "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."

  71. Perhaps even more broadly, Sedley LJ, in his short concurring judgment, dismissed the idea that parents could claim a derivative right to work when the child had none (at para [27]):
  72. "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."

  73. Suffice for us to note here that Sedley LJ's reasoning is support for the approach of the Tribunal in its recent case law. It is, with respect, a more pithy statement of the 'circularity' argument relied upon by the Tribunal in GM and AM and later in MA.
  74. Finally, the Court approved the reasoning of the IAT that because of the illegality of the father's employment the resources relied upon were unstable. The reasoning was as follows:
  75. "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."

  76. In our view, this reasoning is directly applicable here. Because of their illegal status, the appellants' employment is no less precarious than that considered by the IAT.
  77. Conclusion

  78. For these reasons, we have concluded that the appellants have failed to establish that they are 'self-sufficient' based upon the income derived first from the lawful employment of the parents and latterly the unlawful employment of the parents. The immigration judge reached the correct conclusion in law that the appellants appeal based upon EU rights must fail.
  79. Other grounds

  80. In his skeleton, Mr Cox sought to rely upon his grounds of review which challenged the immigration judge's decision in relation to fairness and under Article 8. Reconsideration was not ordered on these grounds but he sought to resurrect them relying on AH (Scope of s103A reconsideration) Sudan [2006] UKAIT 00038. Mr Cox did not press these matters in his oral submissions. We do not consider that there are any good reasons for re-opening these grounds rejected by the Senior Immigration Judge. However, out of deference to him, we will deal with them albeit we can do so shortly.
  81. First, the unfairness argument: that is based upon an assertion that further leave has been granted to other nursing colleagues of the mother who were of Philippine nationality. The immigration judge dealt with this in paragraph [14] of his determination. Having heard oral evidence, he concluded that the evidence was far from clear and he was not satisfied that the Secretary of State was obliged to act in relation to the appellant (mother) simply because he did so for others. The immigration judge expressed himself briefly but we do not consider that he erred in law. He referred to the evidence he heard and concluded it was not clear. We have to say that we agree: the evidence in the written statements of the mother and another nurse (at pages 1-3 and 4-5 respectively of the appellants' reconsideration bundle) is not clear. It may be that the only application made on behalf of the mother was the EEA application (by contrast, of course, to the other nurses). We cannot be confident one way or another. In any event, to establish a public law claim based upon abuse of power in these circumstances, namely inconsistency, requires clear evidence of patent unfairness (see, e.g., Rashid v SSHD [2005] EWCA Civ 744; [2005] INLR 550). On no basis, could the material before the immigration judge justify such a finding.
  82. Second, the Art 8 argument: that is based upon the immigration judge's failure to take account of the mother's outstanding application for discretionary leave. True it is that he did not refer to this in his consideration of Art 8 in paragraph [15] of his determination. He referred to Huang and the ability of the family to return to the Philippines and live together as a family. The immigration judge correctly decided that none of the appellants had an EU right to reside in the UK. There was nothing before him to suggest that the family could not return to the Philippines and live there even though the third appellant is an Irish national. The immigration judge applied the Huang's 'truly exceptional' test. His conclusion that the appellants had not established a breach of Art 8 is entirely sustainable both in relation to 'proportionality' but also in their failure to show that any interference with their family life is sufficiently serious to engage their Art 8 rights.
  83. Decision

  84. For the foregoing reasons, the immigration judge did not materially err in law and – subject to the proviso that only the third appellant's appeal was properly before him - the decision to dismiss the appeal stands.
  85. A GRUBB
    SENIOR IMMIGRATION JUDGE
    Date:


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