Liu Ors v Secretary of State for the Home Department

The applicants have thus far been referred to anonymously, under the court policy of anonymising all immigration cases at their inception, in case it becomes apparent that publicity might be harmful to the applicants and their connexions, whether or not they are returned to their country of origin. At the opening of the appeal the court indicated that in pursuit of the leading principle of openness it would wish to give judgment using the appellants’ proper names, unless significant reasons were advanced for its not doing so. All counsel, after taking instructions, were good enough to indicate that there was no objection to their clients being named.

All of these conjoined appeals explore some details arising from the jurisprudence of the European Court of Justice [ECJ] and of this court in relation to the rights of movement and residence of citizens of the European Union that are conferred by Article 18 EC, and the associated rights of certain members of their families that are conferred by Directive 90/364, now replaced by Directive 2004/36. None of the adult appellants are citizens of the Union. All of them claim a right to residence in the United Kingdom by virtue of a family connection with a child who is a citizen of the Union.

The appellant Wang is the mother of the appellant Liu, who is now three years old, and their cases will be considered together. In the Ahmed appeal, the three appellants are Mr and Mrs Ahmed and their daughter aged now six years. In the Mouloungui appeal the appellants are Grace Mouloungui (“Grace”), aged eleven years, and her father Mr Mouloungui.

Wang and Liu and Ahmed are Irish cases. In each case the parent, a non-EU citizen resident in the United Kingdom on a short-term basis, arranged to travel to the Republic of Ireland in order to give birth to the child with whom this case is concerned. There has been no attempt to suggest that the birth took place in the Republic for any other reason than to take advantage of the nationality rules of that country, which under the jus soli then (but no longer) part of its law conferred Irish nationality, and thus citizenship of the Union, on any child, of whatever origin or parentage, who was born there. It might have been thought that for the parents who had made that arrangement then to seek for themselves the rights of citizen of the Union on the back of the right that they had created for their child engaged the principle of the abus de droit that is part of Community jurisprudence. However, the European Court of Justice in paragraphs 34 to 40 of its judgment in Case C-200/02 Chen [2004] ECR I-9925 rejected any such argument; and we therefore treat these children as citizens of the Union like any others; and in the case of their parents ignore their role in creating that citizenship.

Mouloungui has a different background. Grace was born in 1996 as a national of the French Republic; I understand that was because her mother is a French national, and although the family seems to have been principally located in the DRC, Grace was born in a dependent territory of the French Republic. Mr Mouloungui, a citizen of the DRC, came to this country in 2001 and was shortly thereafter followed by Grace. Mr Mouloungui has been in this country without permission since he exhausted his rights of appeal in relation to his asylum claim in, I think, 2003. He now claims the right to remain here permanently on the basis of Grace’s citizenship of the union.

Liu and Wang. Miss Wang, a citizen of the People’s Republic of China, came to this country, aged 16, in 2002. She unsuccessfully claimed asylum, but as an unaccompanied minor was given discretionary leave to remain until her 18^th birthday on 12 October 2004. As an incident of her discretionary leave to remain she was permitted to work, and did so in a restaurant. There she appears to have met Mr MK Liu, who had been in this country without leave, and had been working here illegally, apparently since 1995. Miss Wang travelled to the Irish Republic when pregnant by MK Liu, and gave birth to the appellant Liu there on 18 September 2004. Thereafter, on 7 February 2005, she married MK Liu. Before her discretionary leave to remain expired, Miss Wang applied for an extension. The Secretary of State’s refusal of such leave was challenged in these proceedings on the basis of the EU citizenship of Liu. Wang’s permission has been extended to the end of the proceedings by section 3C of the Immigration Act 1971, and she has permission to work because of that extension, but not otherwise.

Ahmed. Mr Ahmed was given leave to enter the United Kingdom as a student in 1998, and that leave was successively extended until December 2005. He married Mrs Ahmed in Bangladesh in February 2000, and she was given leave to enter as his spouse in July 2000. Their daughter was born in Dublin in November 2001. Both parents worked in this country in conformity with the terms of their respective conditions to remain. In July 2005, that is some six months before those permissions expired, they applied for permission to remain, this time on a permanent basis, on this occasion as the parents and primary carers of their daughter, an EU citizen. These proceedings spring from those applications. The parents now have permission to remain in the United Kingdom, and permission to work here, solely by virtue of section 3C, a permission that will expire on the conclusion of this appeal.

Mouloungui. The facts of this case have largely been set out above. Because of the particular argument that is raised in this appeal, it is necessary to add that since her arrival here in 2001 Grace has been in (compulsory) full-time education, and receives excellent reports from her school.

The jurisprudence that has to be applied to these applications was set out by the Court of Appeal, in terms that bind this court, in W (China) v The Secretary of State for the Home Department [2007] 1 WLR 1514. That authority causes significant difficulties for the appellants. It may in principle be possible, under the domestic rules of precedent, to undermine a binding authority by showing that it is clearly incompatible with the authority of the ECJ (see paragraph 171 of the judgment of the Master of the Rolls in R (Countryside Alliance v The Attorney General) [2007] QB 305). No such sustained argument was made to us, though one of the arguments, referred to below, could not be maintained unless W (China) was wrongly decided. Rather, the main thrust of the submissions was that W (China) was distinguishable.

These appeals turn, as did W (China) and Chen that it applied, on Article 18EC, read with the requirements of Article 1(1) of Directive 90/364 and Article 7 of Directive 2004/38. Article 17EC creates a citizenship of the Union, enjoyed by everyone holding the nationality of a Member State, as is the case with Grace, Liu and the infant Ahmed. Article 18 then provides that:

“Every citizen of the Union should 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”.

Those limitations and conditions are to be found in the Directives, and more particularly in Directive 2004/38. They provide that persons asserting a right of residence as EU nationals (rather than on the basis of being EU migrant workers) have to demonstrate that they and their “family members” have (i) comprehensive sickness insurance in the host member state; (ii) “sufficient resources” to avoid becoming a burden on the social assistance system of the host member state.

The Court of Appeal held in W (China) that in the unusual case of a minor EU citizen, unable to cope for himself without parental or guardian support, those Community rules led to the following propositions:

Both Miss Webber, who argued the main part of the appeal for the appellants, and Mr Vajda QC (the former with a good deal more enthusiasm than the latter) were inclined to say that either because W (China) concerned a carer who was always unlawfully in this country, and his case failed on that ground; or because W (China) had been decided on the issue of health insurance; all of the foregoing propositions (except that in sub-paragraph 12(iv)) were strictly speaking obiter. I do not agree. The structure of the judgment in W (China) makes it quite clear that the unlawfulness of the carer’s presence in this country, and the possession of health insurance, were relevant because of the analysis of the nature of the EU’s national’s right to reside. That analysis was accordingly an essential part of the reasoning of the court, and all of the propositions set out above are therefore part of the Court of Appeal’s ratio.

Neither Grace nor Lui have access to private health insurance. Mr Ahmed’s daughter, it can be presumed in her favour, has such access through her father’s section 3C employment, but that will cease on completion of these proceedings. That in principle is fatal to their claims, as it was fatal in W (China). However, it is further argued that the resources requirement can be fulfilled from employment taken by various of the adults involved, and sickness insurance would also therefore be financed from that income. If that argument were well-founded, I would be prepared to accept that it could at least potentially fill the gap left by the absence of health insurance. However, the argument is not well-founded.

It was principally argued that this case differed from W (China).  In that case all of the adults’ presence in the United Kingdom had been unlawful, hence they were not permitted to work, so such income as they had was precarious. Here, all of Wang, Mr Ahmed and Mrs Ahmed had been and still were working lawfully. But that permission to work was originally granted in relation to limited permissions to remain that had now expired; and the present condition only existed because of, and is only valid until the end of, the present proceedings. The temporary income that has resulted cannot possibly be characterised as sufficient resources to support an application for residence after the present proceedings have been resolved, which is what the applicants seek in each case. And that objection has nothing to do with whether the Directives require the self-sufficiency to be fulfilled throughout the foreseen period of residence (which in view of the ages of the children may be very lengthy). The present ability to work, on which the appellants rely, does not even enable the children and their parents to commence the period of residency that they seek, because that ability expires at the start of that period of residency.

Three further aspects of this issue need to be addressed, principally advanced in clear submissions by Miss Rogers. First, in placing a limit on the parents’ right to work, and in not continuing that right once the present Section 3C right expired, the Secretary of State was enforcing domestic immigration law. It was submitted that that was not a permissible limitation to place upon, or a permissible source from which to draw limitations upon, the exercise of a fundamental Community right such as the Community citizen’s right of residence in another member state. As stated in the Directives, the national government is permitted by Community law to protect the national social security system, but it is not permitted by Community law to protect the national labour market: which was a significant objective of immigration law.

This argument was very forcibly put, but it is based on an incorrect reading of the Community legislation. The Article 18 right is not absolute, for it depends for its existence on fulfilment of the conditions stipulated by the Directives: see sub-paragraph 12(iii) above. The parents in question, who are not EU citizens, have no right in EU law to work in this country unless, as Miss Webber indeed argued that it was, that right is derived from their EU citizen children’s right to reside here. But the children do not have that right at all without the contribution of resources from the parent. The parents’ immigration position is not, therefore, being used as a basis for taking away from an EU citizen a right that would otherwise exist; but as a factual reason, one amongst what might be many others, for instance if a carer was disabled, why the resources requirement was not fulfilled. It will be recalled from paragraph 16 of W (China) that the appellants in that case disclaimed any argument that the national state in a case of incapacity would have to provide disablement benefit in order to create a right of residence for the EU national child, and it was not suggested before us that that position had been incorrect. I do not see why Community law should nonetheless require the national state to alter its immigration law when it is not required to alter its social security law.

If the present argument were correct, it would lead to the conclusion that W (China) was wrongly decided. However, I do not reject the argument on grounds of precedent, but on the basis of logic as set out in paragraph 17 above. Another approach to the authority of W (China) was to say, as did Miss Webber, that the case had been correctly decided, in that it excluded employment that was unlawful at the time at which the application had been made; but that could not apply to a case such as the present, where the employment was lawful, under a temporary right to work, when the application was made. That concession, if it was such, shows the difficulty of the present argument. Quite apart from it turning on whether Ms Wang happened to apply to stay in this country before or after her eighteenth birthday, immigration law was applied in W (China) just as much as it was by the Asylum and Immigration Tribunal in the present cases. In the one case it rendered the actual or hypothetical employment unlawful now; in the other, unlawful at the point when the employment would matter, on the first day after the present permission expired.

Second, Miss Rogers and other counsel said that the ECJ had shown an inclination to support non-EU citizens in the interests of the assertion of the rights of EU citizens. That approach should be followed in the present case. But the cases that most clearly support that argument are Case C 413/99 Baumbast [2002] ECR I-7091 and Case C-60/00 Carpenter [2002] ECR I-6279 . Both of those cases concerned persons who had a right of residence that did not depend on the EU citizenship relied on by the children in this case: Mr Baumbast because he was a migrant worker, Mr Carpenter because he was providing services to other member states. Far from their requiring resources or anything else from the non-EU citizens, the latter’s right were entirely dependent on the existing rights to reside as a EU citizen. The principle tentatively suggested before us does not exist in the form that it was sought to be used in this case; on that, I cannot improve on what was said about Carpenter by this court in paragraph 21 of its judgment in W (China).

The third submission affects all of the appellants, but it is of particular relevance to the Mouloungui appeal: which because of the continual unlawfulness of the presence in the United Kingdom of Mr Mouloungui would fail in any event if W (China) were applied to it. This submission was that the court should indeed look to the future, during the period of long-term residence, and ask whether, if granted permission to remain on Article 18 grounds, the adult claiming to provide the resources would indeed be able to do so, by taking employment if so permitted. The past experience was relevant to that question. Wang and Mr and Mrs Ahmed continue in their present employment; and Mr Mouloungui, although currently forbidden to work, had a “job offer”. Permission to remain must therefore be provided in order to enable a parent to fulfil the resources requirement of the Directive, and thus make a reality of the child’s right of residence as an EU citizen.

This approach fails for the reasons that have already been set out. By a combination of Article 18 read with the requirements of the Directives, the right to reside only exists once the requirements of the directives are fulfilled: see paragraph 12(iii) above. The member state therefore is not obliged to adjust its domestic law to create for the EU citizen the resources that he needs in order to create his right to reside: see sub-paragraph 12(v) above. In the present cases, Mr Mouloungui as a failed asylum seeker; and Ms Wang and Mr and Mrs Ahmed as overstayers; are forbidden to work save for the quirk provided by their participation in these proceedings; and there is no reason at all to think that that position will change. But the present applications demand that the United Kingdom creates for them a right to work outside the normal rules in order to provide resources for the respective children.

To refuse to take that course, as the Court of Appeal refused to do in W (China), is not in any way inconsistent with Chen. In that case Mrs Chen’s resources were proved, extant, and not in any way dependent on her taking employment. The case said absolutely nothing about conferring any rights on the parent in order to enable her to create the required resources; and I venture to think that the ECJ would have been extremely surprised if told that it had opened the door to any such obligation. Nor is it right to argue that to prevent the adults from working renders the children’s EU rights meaningless. The EU right is not unlimited, but is subject to the conditions contained in the Directives. Those conditions include the resources condition, which was fulfilled in Chen, but which is not fulfilled in the particular cases such as the present.

I therefore conclude that there is no obligation on the member state to adjust its laws, whether its immigration law or any other part of the national legal order, to enable accompanying adults to work in order to provide resources for an EU citizen wishing to reside in that member state. All of the appeals fail on that point.

In a separate submission, the Mouloungui family sought to rely on Grace’s position as a student. That submission had two limbs.

First, the direct wording in Article 7(c) of Directive 2004/38 recognises as a separate basis for a right of residence of an EU citizen the fact that the citizen is enrolled in an educational establishment. Although it played a substantial role in the written submissions, Miss Rogers touched on the point only lightly in oral argument. She showed good judgement in that diffidence. As the Secretary of State pointed out, Article 7(c) applies only to further and vocational training, and not to children of school age; and that is a sensible and expected limitation, since while free movement of older students throughout the Community is desirable and necessary, that is scarcely imperative in the case of schoolchildren. And even without that objection, Article 7(c) is still subject to the resources requirement: otherwise, it could not in any event be used to create a right for Mr Mouloungui, which is a significant objective of these proceedings. And, to the extent that the real world is permitted to intrude upon this enquiry, it is just wrong to say that Grace is in the United Kingdom in order to pursue her education. She is in the United Kingdom in order to be with her father, and as an incident to that precedence is obliged by the law of this country to attend full-time education.

Secondly, it was sought to rely by analogy on Baumbast, where by a benevolent application of the rules relating to migrant workers the child of such a worker, established in education when she accompanied her father to this country, could remain here, and her (non-EU) mother with her, to continue her education even when her father had left the family. There, the child’s right to remain in education stemmed from the already existing EU right of her father. For the same reason as was set out above, the same argument cannot be used to create a right for the parent of an EU citizen who until that right is created has no right of residence here at all.

It was suggested in argument that the case might require a reference of some sort to the ECJ. No formal application was made, but in any event I would not pursue the issue. The jurisprudence affecting these appeals is perfectly clear, and it is not only not necessary but also inappropriate to trouble the ECJ with it.

I further bear in mind that, as we are told by the Secretary of State, the House of Lords refused in strong terms an application for permission to appeal in W (China). I have no doubt that their Lordships would not have taken that view if they thought that any assistance from the ECJ was required.

In both of Ahmed and Mouloungui the AIT considered the arguments to be circular, thus giving effect to the ruling of this court set out in sub-paragraph 12(iii) above. The AIT in Liu and Wang followed those decisions. They were all correct. For the reasons already set out, I would dismiss all of these appeals.

All of these cases have turned on the technical application of EU law, and not at all on the individual merits of the case. I would however wish to say something more about Grace Mouloungui. She has been in this country for a long time, is very well integrated here, and now is almost certainly much more of an English than a French person. From what has been said about her, she sounds to be a person that any country would be glad to count amongst their citizens; though there is no evidence as to whether that can be said about her father. Were it not for the presence of her father, she having apparently arrived on these shores as an unaccompanied minor would qualify for discretionary leave to remain until the age of eighteen. As it is, and with the failure of this application, she is faced with the removal either to France, where she knows no-one and has never lived; or with her father to the Democratic Republic of Congo, which country she left when six years old, and where there is no certainty (indeed, from what the court knows of that country, no likelihood) that her educational progress can be sustained, and certainly not sustained in the English language. I appreciate that the greatly complicating factor at the present is the position of her father. I do however hope that those advising the Mouloungui family will now revert to the Secretary of State to see whether a humane and sensible solution can be reached in this case, whether or not within the ambit of Article 8 or of Article 2 of the First Protocol of the ECHR.

When refusing permission to appeal in W (China) the House of Lords said this:

“The correct application of community law is so obvious as to leave no scope for any reasonable doubt.”

It is to be hoped that the professions, and the Legal Services Commission, will take good note of that observation, and that these appeals will be the last occasion on which the AIT, and this court, is troubled with these issues.

I agree.

I also agree.