MJ v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The first named appellant, who was born on the 27 February 1971, is a citizen of Nigeria. The second named appellant, born to her on 12 September 1995 in Greece, is also a citizen of Nigeria. The third named appellant, who was born on 19 May 1999, is a citizen of Greece. He is the son of Mr K, whom the first named appellant married in Greece on 30 November 1998. The fourth named appellant, who was born on 22 October 2004 in the United Kingdom, is the son of the first named appellant and Mr K and is a citizen of Nigeria. The appellants’ appeals against the decision of the respondent, refusing their applications for confirmation of their right to permanent residence under regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (hereinafter called “the 2006 Regulations”), made on 5 November 2007, was dismissed after a hearing by Immigration Judge Malone, in a determination promulgated on 4 January 2008. Reconsideration was ordered on 18 January 2008 by Senior Immigration Judge Latter.

The marriage of the first named appellant and Mr K had broken down. According to the written statement of the first named appellant Mr K left the matrimonial home for good in September 2006. In oral evidence, however, she said that she last saw him in August 2006. There was conflicting evidence as to where he might be. The immigration judge formed the view that he could not be satisfied that Mr K had ceased to reside in the United Kingdom. The evidence of the first named appellant was that Mr K had ceased to work in 2004. She herself worked as a security guard. The immigration judge dismissed the appeals of the third and fourth named appellants because he was not satisfied that they were the direct descendants of a person who ceased to be a qualified person on ceasing to reside in the United Kingdom as required by regulation 10(3)(a)(ii) so as to enable them to be family members who had retained the right of residence. He dismissed the appeal of the second named appellant because he was not satisfied that he was the direct descendant of a person who was the spouse of the qualified person who ceased to be a qualified person on ceasing to reside in the United Kingdom as required by regulation 10(3)(a)(iii) by reference to sub-paragraph (ii). He dismissed the appeal of the first named appellant because he was not satisfied that she was the parent with actual custody of a child who satisfied the condition in paragraph 10(3) as required by regulation 10(4).

The immigration judge observed that the applications had been refused by reference to regulation 15(1)(b) and that before him it was submitted that the appellants’ applications rested upon regulation 15(1)(f) as persons who had resided in the United Kingdom for a continuous period of 5 five years and who were, at the end of that period, family members who had retained the right of residence. He found, however, that the evidence at its highest demonstrated that the appellants resided with Mr K from December 2001 to August 2006 and none of them had retained the right of residence under regulation 10.

In the cases of the first three named appellants it was asserted in the grounds for review that they did comply with the regulations mentioned by the immigration judge since Mr K had ceased to be a qualified person on ceasing to reside in the United Kingdom. In the case of the fourth named appellant it was said that he had retained the right of residence and had resided in the United Kingdom for a period of five years.

Before me Mr Adisa relied upon his skeleton argument which did no more than set out the requirements of regulations 10(3), 10(4) and 15 of the 2006 Regulations and which stated that regulation 10(3) and (4) were designed to implement the decision of the Court of Justice (hereinafter called “the ECJ”) in Baumbast and R (Free movement of persons) [2002] EUECJ C-413/99. Mr Adisa submitted that it should be presumed that Mr K had left the United Kingdom because it would not be possible for the appellant to prove that he had, although he could not point to any authority for this proposition. He drew my attention to Baumbast and when it was pointed out that the EEA national in Baumbast had obtained employment outside the United Kingdom he submitted that had he not done so the situation would have been covered by the principle established in Aissatou Diatta v Land Berlin [1985] EUECJ R-267/83.

The appellants have brought their appeals under regulation 26 of the 2006 Regulations and by virtue of Schedule 2 to the 2006 Regulations the grounds made available by section 84(1), except paragraphs (a) and (b), are open to them. It is to the 2006 Regulations first of all, therefore, that one must have regard in determining whether the immigration judge made a material error of law.

Regulation 10 of the 2006 Regulations so far as is relevant provides as follows:

“(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).

…

It was not disputed that the appellants are family members of Mr K within the meaning of regulation 7 of the 2006 Regulations since the first named appellant is still his wife, the second named appellant is the son of the first named appellant and is under 21 years of age, the third named appellant is the son of Mr K and under 21 years of age and the third named appellant is the son of both Mr K and the first named appellant and under 21 years of age. Whether Mr K had left the United Kingdom or not was more likely to be within the knowledge of the first named appellant than that of the respondent and in my view the burden of proof in showing that they came within the 2006 Regulations lay upon the appellants, notwithstanding how difficult it might have been to achieve, see AG and others (EEA-jobseeker-self-sufficient person proof) Germany [2007] UKAIT 00075, summary point (v). Mr Adisa was not able to point to any authority for the proposition that where it was not possible for an appellant to demonstrate a particular fact he should be dispensed from satisfying the burden of proof.

The immigration judge was clearly correct in not being able to be satisfied on the evidence before him that Mr K had left the United Kingdom. In these circumstances the appellants were not able to show that they were family members who had retained the right of residence within the scope of regulation 10 since it cannot be said that Mr K was a person who ceased to be a qualified person on ceasing to reside in the United Kingdom. Rather he ceased to be a qualified person in 2004 upon ceasing his employment and this would have been the case even if he had left the United Kingdom subsequent to having ceased working in the United Kingdom. The appellants have not demonstrated that he remained a qualified person in any other way.

Mr Adisa sought to rely upon Directive 2004/38/EC but it is clear that the relevant provision of the Directive, which regulation 10 of the 2006 Regulations was designed to implement, namely Article 12, also requires the EEA national to have departed from the host Member State. Article 12 so far as it is relevant provides:

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).

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.”

Article 7(1) provides as follows:

“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:

are workers or self-employed persons in the host Member State; or

Notwithstanding that I have reached the conclusion that the appellants cannot comply with the provisions of the 2006 Regulations, Mr Adisa’s reference to Baumbast does raise the question whether any of the appellants can rely upon Article 12 of Regulation EEC 1612/68 which as an EEC regulation has direct effect in UK law. Directive 2004/38/EC repealed Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/35/EEC,90/364/EEC, 90/365/EEC and 93/96/EEC and amended Regulation (EEC) No 1612/68 by the repeal of Articles 10 and 11 with effect from 30 April 2006. Article 12 therefore remains in force. Article 12 provides as follows:

In G.B.C.Echternach and A. Moritz v Minister van Onderwijs en Wetenschappen.(Free Movement of persons) [1989] EUECJ-389/87 the ECJ held that under Article 12 of Regulation 1612/68 a child of a worker of a Member State who had been in employment in another member State retained the status of member of a worker’s family within the meaning of Regulation No 1612/68 when that child’s family returned to the member State of origin and the child remained in the host State, even after a period of absence, in order to continue his studies, which he could not pursue in the State of origin. The reasoning of the Court was that the equal treatment, in relation to national workers, to which workers of a Member State who were employed in another Member State were entitled as regards the benefits granted to members of their families, contributed to their integration in the society of the host country, in accordance with the aims of the free movement for workers: see paragraph 20 of the judgement. In paragraph 21 of the judgement the Court said that for such integration to come about, a child of a Community worker must have the possibility of going to school and pursuing further education in the host country, as was expressly provided in Article 12 of Regulation No 1612/68, in order to be able to complete that education satisfactorily and he retained that right even if his father returned to the Member State of origin if the child had no choice but to return to the country where he attended school in order to continue studying.

In Baumbast Mrs Baumbast was a Colombian national married to a German national. They had two daughters, the elder, Mrs Baumbast’s natural daughter, was a Colombian national and the younger had dual Colombian and German nationality. They moved from Germany to the United Kingdom in 1990, where Mr Baumbast carried on economic activity first as an employed person and then as the head of his own company. The company failed, however, and although continuing to reside in the United Kingdom he became employed by German companies in China and Lesotho. During the material time he and his wife owned a house in England and their daughters went to school here. In January 1996 the Secretary of State refused to renew Mr Baumbast’s residence permit and the residence documents of the members of his family.

The first question which the Court was called upon to answer was whether children of a citizen of the European Union who were themselves such citizens and who had installed themselves in primary education during the exercise by their father of rights of residence as a worker in another Member State of which he was not a national were entitled to reside in the host State in order to undergo general educational courses there, pursuant to Article 12 of Council Regulation No 1612/68 and whether the answer might vary depending upon whether only one parent was a citizen of the European Union and that parent had ceased to be a worker within the host State and whether the children were not themselves citizens of the European Union. In paragraph 50 of their judgement the Court said that the aim of Regulation No 1612/68, namely freedom of movement for workers, required, for such freedom to be guaranteed in compliance with the principles of freedom and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State. In paragraph 52 of their judgement the Court said that to prevent a child of a citizen of the Union from continuing his education in the host State by refusing him permission to remain might dissuade that citizen from exercising the rights to freedom of movement laid down in Article 39 EC and would therefore create an obstacle to the effective exercise of the freedom thus guaranteed by the EC Treaty. The Court went on to hold in paragraph 54 of their judgement that to permit such children to continue with their education in the host Member State only where they could not do so in their Member State of origin, as in Echternach and Moritz, would offend not only the letter of Article 12 but also its spirit. As to whether the fact that the children were not themselves citizens of the Union made any difference, the Court found that as under Article 10 of 1612/68 the descendants of a Community worker who were under the age of 21 or were dependants, irrespective of their nationality, were to be regarded as members of his family and have the right to install themselves with that worker, they had the right to be admitted to the school system in accordance with Article 12. In paragraph 57 of their judgment they went on to hold that this right must be interpreted as extending to the descendants of the worker and his spouse since to give a restrictive interpretation to exclude them would run counter to the aim of Regulation No 1612/68.

The second question which the Court was called upon to decide was whether Article 12 of Regulation No 1612/68 must be interpreted as entitling the parent who was the primary carer of the children, irrespective of nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parent who had the status of citizen of the European Union had ceased to be a migrant worker in the host Member State. The Court found that Article 12 must be so interpreted otherwise that might deprive the children of a right granted to them by the Community legislature.

The third question was whether Mr Baumbast who no longer enjoyed a right of residence as a migrant worker might enjoy a right of residence in the United Kingdom by direct application of Article 18(1) EC. The Court held that he did so since the Treaty on European Union did not require that citizens of the Union pursue a professional or trade activity, whether as employed or self-employed, in order to enjoy the rights provided in Part Two of the Treaty and there was nothing in the text of the Treaty to permit the conclusion that citizens of the Union who had established themselves in another Member State in order to carry on an activity as an employed person there were deprived, where that activity came to an end, of the rights which were conferred on them by the EC Treaty. Such right of residence, however, was subject to the limitations and conditions laid down by the EC Treaty and the measures adopted to give it effect. Article 1(1) of Directive 90/364 provided that member States could require of the nationals of a member State who wished to enjoy the right to reside within their territory that they themselves and the members of their families be covered by sickness insurance in respect of all risks in the host State and have sufficient resources to avoid becoming a burden on the social assistance system of the host State during their period of residence.

It is plain in my view that the rights of Mrs Baumbast and the children of the family under Article 12 of Regulation 1612/68 were different from those of Mr Baumbast under Article 18(1) of the EC Treaty. The question, which the Court was not asked to decide, remains whether their rights were also subject to Article 1(1) of Directive 90/364. As a matter of fact the Baumbast family were able to rely upon the resources available to Mr Baumbast and the comprehensive insurance he had in Germany. In the linked case of R, a United States citizen, who was divorced from her husband, a French national, and in respect of whom the Court found that she and her two children from her first marriage had similar rights to those of the Baumbast family under Article 12, R’s husband remained in employment in the United Kingdom and so was still exercising rights as a migrant worker. The divorce settlement provided for the children to reside with R in England and Wales for at least five years after the divorce. She had purchased a house and had established a business in the United Kingdom and both she and her former husband were financially responsible for the children.

In paragraph 38 of their determination in GM and AM (EU national; establishing self sufficiency) France [2006] UKAIT 00059 the Tribunal said this about the decision in Baumbast:

“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.”

It was not necessary for the Tribunal in GM and AM to make any finding as to whether the rights under Article 12 were subject to the need to establish self sufficiency and, as been indicated, that was not a question which the Court in Baumbast had been called upon to decide.

In Ali v Secretary of State for the Home Department [2006] EWCA 484 the Court of Appeal had to consider the case of a Somali failed asylum seeker who had established, in the United Kingdom, a relationship with, but did not co-habit with a Dutch national, Mrs Abdi, who had arrived in the United Kingdom in November 2000, about two years before he did so. The appellant had a son, born in 1999, who was a Dutch national and he, with Mrs Abdi’s children, two of whom the appellant may have been the father, attended school in the United Kingdom. The immigration judge had found that Mrs Abdi was not a worker and was not otherwise exercising Treaty rights and that therefore the appellant did not have a right of residence in the United Kingdom and that the children did not have a right to receive education for which they were not paying. In the Court of Appeal the main argument addressed to the court was that the appellant’s son as a Dutch national had a right to reside in the United Kingdom in order to be educated here under Article 18 of European Community Treaty and that the appellant was entitled to accompany his son while he was a minor. It was submitted that as Directive 2004/38, which conferred a right of residence on those enrolled at a private or public establishment for the principal purpose of following a course of study, including vocational training which was conditional upon them having comprehensive sickness insurance and assuring the relevant national authority that they had sufficient resources for themselves and their family members not to become a burden on the host state, operated only from 30 April 2006 there was a lacuna not covered by the Directive so that the right of residence for the time being was not dependant upon showing sufficient resources not to become a burden on the state. Article 18 provides:

In paragraph 20 of his judgement, Keene LJ, with whom the other members of the court agreed, stated that what had been submitted was patently not the position under European law. He said that none of the ECJ decisions recognised such an unfettered right of residence and several of them clearly implied that there was no such right merely because of Article 18. He quoted the decision in Baumbast as an example where the Court upheld the right of residence of a child who was a European citizen and receiving primary education on the basis that not to do so would inhibit the child’s parent from exercising his Article 39 right. He went on to say in paragraph 21:

“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.”

In Ali the appellant could not seek to rely upon Article 12 of 1612/68 since neither he nor his child had installed themselves in the United Kingdom with Mrs Abdi. Nonetheless it seems to me that had he been able to do so the same principles as those applied by the court would necessarily have applied for the same reasons. The decision in Baumbast is not to the contrary effect since, as indicated above, the question whether the rights of the Mrs Baumbast and the children were unfettered was never posed. It would have been extraordinary if while Mr Baumbast was obliged to have sufficient resources and insurance cover for him not to be a burden on the host state to be able to enjoy a right of residence in the United Kingdom as someone not carrying economic activity here, the members of his family whose rights depended upon him not being inhibited from exercising his right of free movement as a worker should not have been subject to the same conditions. It would also be extraordinary if it were the case that the appellants had a right of residence in the United Kingdom, without needing to be self sufficient, because Mr K should not be deterred from exercising his right of free movement as a worker given that, on the finding of the immigration judge, he had remained in the United Kingdom without carrying on any economic activity and without any right to do so under European law.

This view is borne out by the recent decision of the ECJ in Eind (Free movement of persons) [2007] EUECJ C-291/05 in whose judgement the following passage appears:

“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”.

In the particular circumstances of that case, where the appellant as a citizen of the Netherlands had a right to return to his own member State from the United Kingdom without being economically active, it was held his daughter had a similar right by analogy under Article 10(1)(a) of Regulation 1612/68. In this particular case Mr K had lost the right to remain in the United Kingdom upon ceasing to work. The decision in Eind therefore is of no assistance to the appellants.

Although the first named appellant was in employment, any right of residence she might have depended upon those of the EEA national child, which in turn depended upon the child being self sufficient. The child would not be able to establish self sufficiency, however, in reliance upon the first named appellant’s income since the first named appellant had no independent right to live and work in the United Kingdom. The remarks of the tribunal in GM and AM in paragraph 63 of their determination are equally applicable here:

“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.”

For the sake of completeness in Aissatou Diatta the ECJ ruled that the members of a migrant worker’s family, as defined in Article 10 of Regulation 1612/68, were not necessarily required to live with him permanently in order to qualify for a right of residence under that provision and Article 11 of the same Regulation did not establish a right of residence independent of that provided for in Article 10. That decision is not relevant to this case since the issue there was whether a non EU national who was separated but not divorced from an EU migrant worker was nonetheless entitled to an extension of her residence permit. In this case on the finding of the immigration judge Mr K was no longer a migrant worker in the United Kingdom.

In these circumstances the immigration judge did not make a material error of law in his determination and therefore his determination dismissing the appeals shall stand.