ECO (Dubai) v M (Ivory Coast)

This is an appeal by the ECO (Dubai) from a decision of IJ Grant promulgated on 23 March 2010 when he allowed M’s appeal against the ECO’s refusal of entry clearance that would permit her to travel to the United Kingdom along with her daughter C born 8 May 1999 who is a French national. At the same time as he allowed M’s appeal against this decision, he dismissed other appeals that will be the subject of separate judgments but need to be mentioned in setting the background to the issues in this case. Following previous directions issued in this case the parties will be referred to by initial.

M is the unmarried partner of a British citizen P who is employed by a professional services firm based in London and is presently assigned to that firm’s office in Dubai. At some time in the past M had been living in the United Kingdom and had remained beyond a period of leave since 2005. It seems the couple met in the UK and started cohabiting as man and wife in February 2008.

From April 2009 M, P, and C lived together in Dubai. M was also employed by the same firm in their Dubai office. The couple intended to get married but were not free to marry as P was a party to a marriage that had not at that stage been terminated. Divorce proceedings had been instituted.

M was required to undergo a compulsory medical test in connection with a residence permit in Dubai. On or about 14 July 2009 she learned that she was diagnosed positive for HIV. This has had dramatic implications for her continued residence in Dubai. Under local law it was mandatory to refuse a visa, and she was at risk of detention and removal. The household consisting of P, C and M decided to return to the UK where they could live together, M could obtain medical treatment and C could pursue her education at the Lycee Francaise London. The family unit are self sufficient through P’s earnings and are all covered by private health insurance.

M accordingly made a number of applications for entry clearance or equivalent documentation relevant to family members of EU nationals, namely:-

In the light of her precarious situation in Dubai, M and C felt compelled to return to Cote D’Ivoire of which M is a national on 4 September 2009, pending resolution of her challenge to the refusals. She subsequently provided evidence to the ECO of her status as primary carer of C. P has remained in Dubai for the time being pending the outcome of those challenges.

M and P first sought to challenge the refusals by a judicial review application CO/9395/2009 where shortly after issue she sought interim relief requiring M’s admission to the UK. This relief was refused and the judicial review was subsequently adjourned pending the determination of appeals against the various decisions to the then AIT.

The appeals were heard at Taylor House on the 11 March 2010, by IJ Grant sitting as a judge of the First tier Tribunal Immigration and Asylum Chamber, as the AIT had been abolished on 14 February 2010. He decided as follows:

However on the findings of fact he made, the IJ was satisfied that the principle determined by the ECJ in the case of Chen v SSHD [20005] INLR 1 applied to this case. He concluded at [18]:

“Applying the judgment of the ECJ to the situation before me I find that the decision to deny the appellant’s daughter aged 10 an EEA Family Permit as the accompanying non-EEA national mother of an EEA self sufficient child had the effect of denying the daughter her right as an EEA national to exercise freedom of movement within the EEA. I find that the appellant was at the date of the decision the primary carer of her daughter, a fact which was subsequently ratified by the court order of December 2009.”

The Home Office Presenting Officer who appeared for the ECO at this appeal argued that whatever the entitlements generated by the decision of Chen the Immigration Rules applied to regulate entry, in this case paragraph 257C and that rule was in turn subject to mandatory refusal of the application for non disclosure of her previous overstay in the UK pursuant to paragraph 320 (7A). M therefore failed to comply with the Immigration Rules that were applicable to her because she did not comply with the provisions of the 2006 EEA Regulations. The IJ concluded at [19] and [20] that if there was an EU right of entry it could not be restricted by general requirements of the Immigration Rules.

No directions were issued to give effect to the successful appeal. M sought permission to appeal to the Upper Tribunal Immigration and Asylum Chamber in respect of the decisions where the appeals were dismissed. The ECO also sought permission to appeal to UTIAC in the present case.

M’s legal representatives were concerned at the apparent delay in the permission to appeal applications being determined, and the failure of the ECO to grant entry clearance to permit M and C to travel together to London where they would be joined by P. A further application for judicial review was lodged in the Upper Tribunal Administrative Appeals Chambers and the solicitors sought transfer of that application together with the proceedings stayed in the Administrative Court to the UTIAC for determination alongside the pending appeals. The second application for judicial review served only to complicate the determination of this appeal and I am satisfied that there was no jurisdiction to issue it in the Upper Tribunal and it has now been remitted to the Administrative Court pending the determination of this appeal.

A direction was given by me that the applications for permission to appeal be placed before an SIJ promptly. On 23 April 2010 SIJ McKee granted permission to appeal in each case.

Following further requests for the judicial review proceedings to be heard in the UTIAC and interim relief granted, the papers were referred to me and I directed that there be a case management hearing on 25 May 2010. SIJ Spencer on the 14 May 2010 set out a timetable for the parties to comment on the grounds of appeal in the respective cases and for a reply to those responses lodged so the Tribunal could identify what the real issues in the case were, whether there was a material error of law in any of the appeals and if so how the consequent appeals would be determined.

The grounds stated that as the appellant came within neither the EEA Regulations nor the Immigration Rules the appeal should have been dismissed and the decision should be reversed. The material parts of the ECO’s grounds for application for permission to appeal are as follows:

“In taking this approach the Immigration Judge has clearly misdirected himself. As the case law of Chen doesn’t in itself infer a right upon the appellant to leave to enter. For the appellant to succeed as an accompanying non EA national mother of an EEA self-sufficient child she must come within either the EEA Regulations or the Immigration Rules.”

M’s representatives responded to these grounds with further representations to the effect that M did have a right of entry under EU law and that the rest of the grounds were based on a false predicate. Since this contention had been the clear basis of the application, appeal and judicial review and had been the subject of extensive communication s made to this Tribunal, the ECO Dubai, the Treasury Solicitors and the Home Office Presenting Officers’ Unit, it was surprising that the ECO’s grounds should summarily dispute the point without further explanation. Hitherto no one had suggested that there were no EU rights engaged but merely that the mechanism for giving effect to them was through the Immigration Rules.

The directions issued on the 15 May 2010 were designed to give the ECO an opportunity to expand on the assertion in the grounds and address M’s response to it. It was disappointing to find that there had been no written response to these observations made on behalf of the ECO Dubai before the case management hearing that I conducted on the 25 May 2010. It was entirely unclear to me why it was asserted that there was no EU law right of entry on the facts found by the IJ.

At the case management hearing, it was not disputed by Mr Deller HOPO that if there was a directly effective Treaty right for M to come to the UK with C, then the absence of provision to this effect in the EEA Regulations was nothing to the point. I pointed out that under s.2 European Communities Act 1972 the Tribunal is required to apply EU law where it applies, and both FtT IAC and UTIAC have jurisdiction to allow appeals where the decision is not in accordance with the law.

It was accepted by Mr Deller that no EU grounds of public policy were relied on to restrict or defeat any EU right of entry that M might have. Accordingly the question of whether the IJ had made a material error of law enabling the UT to remake this decision turned entirely on the accuracy of the assertion of the words I have emphasised in italics in the grounds. Mr Deller was unable to assist why in law or fact here was no such right of entry.

Under Rule 7 (2) of the Upper Tribunal Procedure Rules 2008 as amended, where a party has failed to comply with a direction, the Tribunal may take such action short of striking out that party’s case as it considers just.

I directed that written submissions should be made by the ECO by 4.00pm 2 June to which a reply should be received by 4.00pm 4 June. It was contemplated in those directions that the UT would determine the appeal on the papers in the light of the representations received. I made these directions under the Tribunal’s case management powers for the following reasons:

On 2 June 2010 in due time the Tribunal received by fax a letter from Mr Deller setting out the ECO’s contentions:

“This letter serves as the response to directions given by the President at a for mention hearing of this and three associated appeals on Tuesday 25 May. The Entry Clearance Officer was to state whether it was accepted, following the judgment of the European Court of Justice in Chen & Others (Free Movement of Persons) [2004] ECJ C-200/02, that the non-EEA primary carer of an EEA minor exercising a treaty right was held to be exercising such a right deriving from the Treaty of Rome. The Tribunal indicated its view that this was plainly the effect of paragraph 42-47 of the judgment and expresses the opinion that the ECO’s appeal in this case could be disposed of without a hearing unless good reason was shown why not.

The view of the ECO is that the effect of the judgment in Chen is not that a treaty right to enter is conferred upon the non-EEA primary carer of a self-sufficient EEA child exercising treaty rights. Reliance is place upon para 25 of the Court of Appeals Judgment in W (China) and Another v the SSHD [2006] EWCA Civ 1494 which it is submitted is binding on the Tribunal – see also para 9 of Liu and Others v SSHD [2007] EWCA Civ 1275. In this regard – with regard to the issues in this case:

“Equally, however, neither parent has any personal right of entry or abode here. Their claim is made in the right of their child: her rights, they contend, can only be exercised if they are able to exercise them with and for her. In point of fact this is undoubtedly the case. ”

The ECO (via the SSHD) notes the Tribunal’s comments about para 42-47 and particularly 46 of Chen, but maintains that the non-EEA primary carer must meet the requirements set out in the Immigration rules at para 257C. The UT is respectfully invited to consider the language chosen by the Court of Justice when it ruled on the right of residents derived from the Treaty for the self-sufficient EEC-national child. This right is rendered effective by the presence of a parent/primary carer but the Court of Justice does not speak in terms of that primary carer function carrying with it an express right to reside. In the circumstances the ECO seeks a substantive hearing of appeal [ ] in due course at which further argument will be made pursuant to the grounds of challenge.”

Detailed representations were made in response to this letter on 3rd June 2010. Whilst the Tribunal was considering the matter in the light of these representations, on the 17 June it received a letter dated 15 June from the Treasury Solicitors indicating that it now sought to instruct counsel to attend at the future hearing of this appeal. There was an exchange of correspondence in which the UT pointed out that it was going to decide whether there had been an error of law by the IJ that would make an appeal and further oral hearing necessary; the previous directions and representations of the HOPO were referred to. In response the Treasury Solicitors indicated that they would await the outcome of the determination on the issue.

The case of Chen concerned whether the non-national parents of a minor child who was an Irish citizen were entitled to reside in the UK in order to make the child’s right of residence practical and effective.

The ECJ rejected a submission by Mrs Chen that she was entitled to reside as a dependant family member of the holder of a right of residence applying Article 10 of Regulation (EEC) no. 1612/68 or Directive 90/360 as she was not dependent on her minor child (see para 43 and 44 of the judgment). The Court then continued:

“45.

On the other hand 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 of 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 (see mutatis mutandis, in relation to Article 12 of Regulation (EEC) no. 1612/68 Baumbast & R v SSHD case C-413/99) [2002] ECR 1-7091[2003] INLR1 para 71-75 ).

46.

For that reason alone, where, as in the main proceedings, Article 18 EC and Directive 90/364 grant a right to reside for an indefinite period in the host member state to a young minor who is a national of another member state, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host member state.

47.

The answer to be given to the national court must, therefore, be that in circumstances like those of the main proceedings, Article 18 EC and Directive 90/364 confer upon a young minor who is a national of a member state, is covered by appropriate sickness insurance and is in the care of a parent who is a third country national having sufficient resources for that minor not to become a burden on the public finances of the host member state, a right to reside for an indefinite period in that state. In such circumstances that the same provisions allow a parent who is that minor’s primary carer to reside with the child in the host member state.”

In Chen itself the questions posed to the Court of Justice concerned a right of residence as at the material time all the parties were resident in the UK. However, Article 18.1 covers both the right to reside freely within the territory of a member state and the right to move to it. In both cases “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

Since Chen the measures adopted to give effect to Article 18 include EP and Council Directive 2004/38/EC the material provisions of which read as follows:

“Article 1: Subject

This Directive lays down:

(a)

The conditions governing the exercise of their right of free movement in residents within the territory of the member states by union citizens and their family members;

(b)

The right of permanent residence in the territory of the member states for union citizens and their family members;

(c)

The limits placed on the rights set out in (a) and (b) on grounds of public policy, public security, or public health.

Article 5: Rights of Entry

In the case of W (China) the Court of Appeal had to consider whether the AIT had been correct to conclude that on the facts of that case there was no right of residence under Art 18 and Directive 360/90.

Having quoted the relevant legislative provisions applicable at the time Buxton LJ giving the leading judgment of the Court observed as follows:

“4.

The right of movement and residence of a citizen of the EU is therefore subject to two pre-conditions: (i) cover by sickness insurance in respect of all risks in the host state; (ii) possession of resources sufficient to avoid becoming a burden on the social assistance system of the host state. Those are logical requirements for the exercise of the right under article 18. The EU citizen does not need to rely on article 18 in order to install himself in another Member State unless he is not an economic operator, assumed to contribute to the economy of the host state. If he is in that position, he will have a right of entry in any event either under Article 39 as a worker; or under Article 43 as a self-employed person; or under Article 49 as a provider of services. Those who do not make that contribution, the Article 18 cases, are thus reasonably required to establish that they will nonetheless not be a burden on the host state.

5.

Directive 90/364 is drafted with an adult citizen in mind, and those covered by article 1.2, as dependents of the EU citizen, are the typical dependents of an adult. In Chen the ECJ had by jurisprudence to expand that regime to accommodate the case of an infant EU citizen who could not assert her rights without the presence and assistance of people who, far from being her dependents, were, as it was put in argument before us, her custodians. That case also concerned a child born to Chinese parents in territory to which the Republic of Ireland extended the jus soli, and therefore a citizen of the EU. Her mother sought to establish herself in the United Kingdom on the basis of being the custodian of the child. An important difference between Chen and our case was that it was not argued in Chen that the presence of the mother in the United Kingdom was otherwise unlawful.

6.

The ECJ recognised that the mother could not take advantage of article 1.2 of Directive 90/364 because she was not a dependent of her child. The court however held, at its §45, that:

“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 art 18EC 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.”

That meant that the mother could enter in that capacity and for that purpose but, as the court also held, subject to the Directive's regime for the protection of the host state. In the specific case of Chen, therefore, the Court regarded it as relevant that the child had both health insurance and sufficient resources, provided by her mother, not to become a burden on the host state.

7.

The ECJ did not deal specifically with whether the accompanying carer or carers needed to have health insurance, or sufficient resources so that they themselves, as opposed to the child, did not become a burden on the host state. However, in both those cases I with respect find compelling the treatment of the IAT at §§ 14 and 16 of its Determination:

“As the Court pointed out in Chen, the accompanying parent in circumstances like this is not claiming under the provisions of Article 1 of Directive 90/364 because the parent is not dependent upon the child. It therefore follows that the Directive's requirements in respect of medical insurance do not apply precisely to the accompanying parents. But, as Chen establishes, the residence of the accompanying parents in the Member State is simply a consequence of the child's right. And the child's right is a right to reside only in such circumstances as will not place on the Member State a financial burden arising out of his residence. When the person exercising the right of residence is an adult, this result is secured by the requirement that accompanying dependent family members also have medical insurance. We think it inconceivable that a similar requirement does not apply to the family members who accompany under the Chen principle and are not dependent on the person exercising the right of residence. If it were otherwise, the exercise of the right of residence would in fact impose a financial burden on the Member State.

The next requirement we consider is that of sufficient resources generally. Again, so far as Chen was concerned, there was no doubt that the parents had sufficient resources for themselves and for the child. The Court expresses the requirement in terms again based on Directive 90.364 that the accompanying parents have "sufficient resources for that minor not to become a burden on the public finances of the host Member State". Again, it is not entirely clear whether the resources have to be sufficient to maintain the minor only or sufficient for the carer as well. We would apply the same reasoning as we have applied to medical insurance. Article 90/364 requires that the resources be sufficient for the person exercising the right of residence and all the accompanying dependent family members; it is inconceivable that accompanying family members who are not dependent should not need to be properly supported; and, if they were not, the residence of the child would in practice impose a burden on the public finances of the Member State because of the parent's needs”.

8.

I conclude therefore that the IAT was correct in holding that in order to fulfil the requirements of Directive 90/364 all of Q, W and X had to demonstrate (i) the possession of sickness insurance; and (ii) sufficient resources to avoid becoming a burden on the social assistance system of the United Kingdom. I consider in turn whether those requirements are indeed fulfilled in this case.”

Thus, it is clear in that case where there was no health assurance available to the parties, and so on the facts the first condition for the existence of any entitlement was not made out for the child or the parents to achieve residence under EU law.

As to the second, there was an issue as to whether W the carer had a right to work that could be the source of sufficient support for the child Q. Buxton LJ continued at [16] and said this:

“As interpreted by the ECJ in Chen, the Article 18 right of Q 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 Q 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: Mr Gill 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.”

(emphasis supplied)

Sedley LJ concurring in the result said:

“Neither Directive 90/364 nor the Immigration Rules provide in terms for the situation which is before the court. They provide for derivative rights, on specified conditions, for spouses and dependent relatives of EU nationals; but since the applicants are in neither of these classes in relation to their daughter, neither source of law applies to them. Equally, however, neither parent has any personal right of entry or abode here. Their claim is made in right of their child: her rights, they contend, can only be exercised if they are able to exercise them with and for her. In point of fact, this is undoubtedly the case. But in point of law the child's own right, which is the right given by Art. 18 EC to reside here and not any of the separate Treaty rights to work here, is itself qualified by a dual requirement: self-sufficiency and health insurance.”

The case of Liu merely affirms the decision in W (China) in the face of an attempt to distinguish it. It is perfectly right to note these decisions of the Court of Appeal are binding on the UTIAC. It has not been suggested that they have been doubted by subsequent decisions of the ECJ or superior court in the UK.

The ECO’s argument in the submissions of 2 June 2010 focuses on the words used by Sedley LJ in his concurring judgment:

“It is submitted that because his Lordship observed that neither parent has a personal right of entry or abode here, there is no right of entry to the UK in EU law at all”.

In my judgement that is no answer to M’s contentions. And the submission fails to engage with what the Court of Appeal was stating to be the law.

In the present case, C has a right of entry simply by virtue of her EU nationality. On arrival she can enter for 3 months irrespective of health insurance or other issues relevant to a longer stay (see Article 6 of the Citizens Directive.) In fact, as she will be joining the household of a British citizen with well paid employment and has BUPA health insurance she could demonstrate both conditions that the child in Chen could not, as does her mother M. It has never been suggested that C did not have a right of entry in the present case. It is equally clear as the IJ found that C’s right of residence in EU law is dependent on her mother being admitted to the UK as her mother is her primary carer. Thus the issue that led to the claim being rejected in W (China) does not arise in the present case. The child is self sufficient and has a right of entry.

Those being the relevant facts, it is necessary to decide whether the ECJ or the CA has considered whether a person in the position of M has a right of entry under EU law deriving from her child’s C right to have her rights of entry made effective.

The ECJ in Chensays in terms at [46] that Art 18 and the then applicable Directive 890/364) allow a parent who is that minor’s primary career to reside with the child in the host Member State. If it those provisions that allow the parent’s residence it is not a discretion to permit residence to be found in national law or the Immigration Rules. The reference to “allow” is a reference an entitlement to do so if the conditions are met. The Court made this clear in the preceding paragraph [45] where it said 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 primarycarer. A child’s entitlement cannot be defeated by discretionary provisions of purely national law.

Buxton LJ in W (China) commented on what this meant when he said at [6] that the mother could enter in that capacity and for that purpose but subject to the Directive's regime for the protection of the host state. The Directive provides for a public policy derogation from EU rights that it is common ground are not in play here. If it is the Directive that conditions the ability to enter and reside it is not the Immigration Rules. In my judgment Buxton LJ was equally clear in using the language of rights if the qualifying conditions were met by the accompanying parent in the passages at [16] that have been emphasised in paragraph [30] of this determination.

There is nothing in Sedley LJ’s concurring remarks that alters this in any way (even if they other members of the court had adopted them which they did not). It is perfectly true that the right given to a person who meets the qualifying conditions is not a personal right spelt out in the Treaty or the Directives but a right deriving from the right of the EU citizen. There is nothing novel in that observation: similar derivative rights were engaged in the cases of C-413/99 Baumbast and R. A derivative right is no less a right if the conditions for existence are made out.

Whereas in W China the conditions for the existence of the right were not made out, on the IJ’s findings in the present case they were. Accordingly it is apparent as a matter of law that having satisfied the factual conditions for its existence M enjoys a derivative right of entry to make C’s right of entry effective. This is a right given by EU law. It is a directly effective right, that exists independently of the terms of the EEA Regulations and the Immigration Rules that in any event must be interpreted compatibly with EU law where it is possible to do so.

In my judgment, the IJ was right as a matter of law to reach the conclusions he did as to M’s EU right of residence on the basis of the facts he found proved in the appeal. Accordingly this is a case where the ECO’s appeal must be dismissed because there was no material error of law enabling the UT to remake the decision.

For ease of reference I shall refer to my conclusions in the associated appeals that will be decided separately:

The fact that there are issues outstanding in another appeal do not prevent M’s admission to the UK now pursuant to the decision of the UT in the present one. On the IJs findings M has had a derivative EC law right that has not been recognised since August 2009. The fact that EC rights are engaged as well as the interests of the child C, the enjoyment of family life between P and M and C and the anxious health concerns of M make this a case where prompt decision making from all public authorities is required.

The IJ made no directions to give effect to the appeal. In my judgment, it is necessary to do so in the light of the unfortunate history of this case. I direct that M be granted the appropriate entry document promptly following promulgation of this decision. The case requires priority for the reasons set out above.

Although for the purpose of enabling her to board a flight to the United Kingdom with C it makes little material difference what the document issued by the UK authorities is called, it should be an EEA family permit. This is a decision based on an EU law right under the Treaty and the Directive, the appropriate document is that referred to in national law for such purposes namely an EEA family permit issued under EU Rules. Its issue is not subject to the discretionary or mandatory grounds for refusal under paragraph 320 Immigration Rules. An EU right can only be negated or restricted by EU grounds of public policy that are not engaged here.

The IJ’s decision to allow the appeal stands. I direct that an EEA family permit be issued promptly on promulgation of this decision.