Olaitan Ajoke Alarape & Anor v The Secretary of State for the Home Department

THE IMMIGRATION ACTS

The term “child” in Article 12 of Regulation (EEC) No.1612/68 [see now Article 10 Regulation (EU) No. 492/2011] (which guarantees a right of access to education) should be read to include “stepchild”.

An order for preliminary reference to the Court of Justice of the European Union is made in this case in relation to other questions.

The appellants are mother and son, born on 9 July 1970 and 28 February 1988 respectively. They are citizens of Nigeria. They arrived in the UK illegally in 2001. The first appellant married Jen Thierry Salama on 13 May 2003. Both were given five years residence as family members of Mr Salama on the basis that he being a national of France was a Union citizen/EEA national exercising Treaty rights. That grant of residence came to an end on 17 February 2009. In 2006/2007 the first appellant’s marriage ran into difficulties, Mr Salama leaving the matrimonial home at some time during this period. On 29 January 2010 the respondent refused to grant either of the appellants a permanent residence card. They had applied for such a card on the basis that they were family members of Mr Salama who was said to have exercised Treaty rights in the UK for over five continuous years. They appealed. By the time of the hearing on 20 May 2010, the first appellant’s marriage had been formally terminated by divorce (on 16 February 2010). In a determination notified on 7 June 2010 the First-tier Tribunal dismissed their appeals. Immigration Judge Dulwich found that the appellants had failed to prove that Mr Salama had been exercising Treaty rights in the UK over the relevant period. The documents submitted only established, the FTT found, that he had been employed between April 2004 and 21 April 2006.

In light of these findings the FTT rejected the appellants’ claim that they qualified for permanent residence on the basis of being able to show that Mr Salama had exercised Treaty rights for a continuous period of five years (regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006) prior to the February 2010 divorce. The FTT also rejected the appellants’ contention that the first appellant had acquired a retained right of residence upon her divorce which, by virtue of regulation 15(1)(f) of the same Regulations, made it possible that the requisite five years of residence before that date could comprise in part retained residence under regulation 10. It also found they had failed to show that these decisions breached their human rights. Noting that under Article 8 ECHR jurisprudence relationships between adult siblings or adult children and their parents would not normally constitute family life within the meaning of Article 8 unless it was established that they enjoyed more than normal emotional ties, the FTT found that the appellants had failed to show the existence of such ties and had also failed to show that the refusal decisions amounted to a disproportionate interference with their right to respect for private life.

The appellants successfully applied for permission to appeal to the Upper Tribunal and, following a hearing before Deputy Upper Tribunal Judge Digney, the Tribunal reconvened for their appeals to be heard by the present panel. The appellants adduced grounds of appeal that reiterated their contention that they should have been found to qualify for permanent residence either under regulation 15(1)(b) or under regulation 15(1)(f) and to succeed on Article 8 ECHR grounds. They also raised, for the first time, an argument based on Article 12 of Regulation (EEC) No. 1612/68. It is as well to clarify at this point that Regulation (EEC) No. 1612/68 was repealed by Regulation (EU) No. 492/2011 with effect from 25 April 2011, the equivalent provision now being Article 10 of this new Regulation. We continue to refer to Article 12 of the old Regulation because our immediate task in these appeals is to establish whether the FTT erred in law when it dealt with them in June 2010, when this was still the relevant EU provision.

On 22 September 2010 the respondent sent a response to the grounds of appeal under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 stating that it did not oppose the appellants’ contention that the FTT had erred in law and that it wished the Upper Tribunal to proceed to decide whether the second appellant had a right to reside to pursue his studies and whether the first appellant thus had a corollary right of residence. That continued to be the position taken by Mr Kyriacou in submissions before us.

Following our hearing of these appeals on 2 June 2011 we decided to seek submissions from the parties in relation to a draft decision in which we set out, inter alia, the terms of the preliminary reference we proposed to make to the Court of Justice of the European Union (hereafter the “Court of Justice”). Both parties responded stating that they did not oppose our making such a reference and they had no comments to make on our proposed draft of those questions. The respondent stated that she reserved her right to make observations, comments, submissions etc in response to the questions later on in the reference proceedings. On 20 September the appellant’s (new) representatives, Seraphus Solicitors, forwarded submissions with respect to our proposed reference, stating that they had no comment to make on the proposed questions but did wish the Tribunal to consider reconvening in order to hear further argument on certain matters dealt with in our draft decision (as explained below at paras 20-21 we rejected that request). On 21 September 2011 the AIRE Centre wrote requesting permission to be admitted to the case as a third-party intervener, in accordance with the Tribunal Procedure (Upper Tribunal) Rules 2008. We acceded to that request. Our reasons for so acceding are the same as those identified by the President in MR and Others (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC), para 48. The AIRE Centre is thus made a party to these proceedings in the exercise of our case management powers. In further correspondence the AIRE Centre said that they had no comments to make on our proposed questions.

In response to Upper Tribunal directions in advance of the hearing the appellants submitted further evidence including written statements. At the hearing the second appellant also gave oral evidence. Whilst Mr Kyriacou sought to clarify several matters, he did not seek to dispute any of their evidence. We are thus in a position to set out the accepted facts in this case as follows.

The appellants arrived in the UK illegally sometime in 2001. On 13 May 2003 the first appellant married Jean Thierry Salama, a French national. It is not in dispute that he was at that time an EEA national. The first appellant was granted residence as the spouse of a Union citizen/EEA national exercising Treaty rights from July 2004 to 17 February 2009. The second appellant was granted residence as the family member of Mr Salama from 6 August 2005 to 17 February 2009. The first appellant was twice pregnant (first in 2004, then in 2006) by her husband but on both occasions she lost the baby. After several years the marriage began to break down, the first appellant filing for a divorce in May 2008 and eventually obtaining a decree absolute on 16 February 2010. The FTT found that her husband left the family home in April 2006.

The first appellant has been working in the UK on a part time and self employed basis and has a monthly income amounting to approximately £1600. She has been making tax and national insurance contributions.

The second appellant has been in full-time education since his arrival in the UK. In July 2008 he was awarded a BSc degree in Engineering (Honours) at London Metropolitan University and in November 2009 he was awarded a Masters degree in Petroleum Engineering at London South Bank University. Originally he intended to return to that university to continue his studies for a PhD in Engineering and Electronics for three years commencing on 1 September 2010 but he then took up an offer to pursue a similar degree at Edinburgh University (Engineering and Electronics (Energy Systems)). During 2006-2008 he did part-time work; he spent the money he earned from this employment on books for his studies. He has been formally accepted on the PhD course at Edinburgh University which is due to start in September 2011. Whilst in the longer term it is possible his mother would consider moving to Edinburgh (along with his two other siblings), he has made arrangements to live with a University lecturer in Edinburgh during term time. The first appellant’s two other children who came to the UK in 1990 and 1992 respectively, are also undergoing further education; their precise citizenship and immigration status is not entirely clear, the appellants’ submissions having said at one point they were British citizens and at another point that they were granted residence as family members of an EEA nationals; in witness statements both of these siblings say that their Nigerian passports were endorsed with indefinite leave to enter the UK and in support of that there are copies of their passports endorsed with “indefinite leave to remain” on dates in 2005. In any event their status is not an issue in these appeals.

Relevant national law

We begin by setting out the relevant national law, contained in regulations 10 and 15 of the 2006 Regulations.

Regulation 10, so far as relevant to divorced spouses of [Union citizens]/EEA nationals, is as follows:

“10.

(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).

….

A person satisfies the conditions in this paragraph if-

Regulation 15 provides:

“15 Permanent right of residence

(1)

The following persons shall acquire the right to reside in the United Kingdom permanently--

(a)

an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b)

a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

(c)

a worker or self-employed person who has ceased activity;

(d)

the family member of a worker or self-employed person who has ceased activity;

(e)

a person who was the family member of a worker or self-employed person where—

(i)

the worker or self-employed person has died;

(ii)

the family member resided with him immediately before his death; and

(iii)

the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

a person who –

Regulation 19 (3)(b) states:

“19.

…

(3)

Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if—

(a)

he does not have or ceases to have a right to reside under these Regulations; or

(b)

he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

(4)

A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.

(5)

A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.”

Directive 2004/38/EC (the Citizens Directive)

Reference should also be made to the corresponding provisions of Directive 2004/38/EC (the Citizens Directive). Recital 15 states:

“Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis”.

Article 2(1) lists those who qualify as a “family member”. This list includes “(a) the spouse” and “(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)”.

Then there are the provisions of Articles 12 - 14:

“Article 12

Retention of the right of residence by family members in the event of death or departure of the Union citizen

1.

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).

2.

Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they 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 their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on a personal basis.

3.

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 13

Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

1.

Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 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).

2.

Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:

(a)

prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b)

by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or

(c)

this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d)

by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they 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 their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

          Such family members shall retain their right of residence exclusively on a personal basis.”

Article 14

Retention of the right of residence

1.

Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2.

Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein. In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

3.

An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4.

By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a)

the Union citizens are workers or self-employed persons, or

(b)

the Union citizens entered the territory of the host Member State in order to seek employment.

In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.”

Article 12 of Regulation (EEC) No.1612/68 and Article 10 of Regulation (EU) No 492/2011

Article 12 of Regulation (EEC) No. 1612/68 states:

“The children of a national of a member state who is or has been employed in the territory of another member state shall be admitted to that state’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that state, if such children are residing in its territory.

Member states shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

The provision which replaced it, with effect from 25 April 2011, is Article 10 of Regulation (EU) No 492/2011: see also Article 41 and Annex II (Correlation table). The wording of the latter is identical.

In the light of the agreed facts and having considered the parties’ submissions we consider that notwithstanding the respondent not opposing a finding that the IJ had materially erred in law, that remains a live issue before us. In order to decide whether the FTT materially erred in law there are three main issues we have to decide: (1) whether the appellants are entitled to a right of residence/permanent residence under the 2006 Regulations or the Citizens Directive by virtue of being able to show a continuous period of residence for five years in accordance with the conditions laid down in the Directive; (2) whether the second appellant is entitled to an EU right of residence under Article 12 of Regulation No. 1612/68; and (3) whether the first appellant can derive an Article 12-related EU right of residence from the second appellant as his primary carer. There is also a fourth issue, but it is convenient not to identify this until later on: see below para 41.

In relation to (1), we are satisfied that the FTT was wrong to consider that the evidence before it was only sufficient to establish that Mr Salama had worked between April 2004 - April 2006 since that evidence included the fact that he had been issued a residence document in February 2004. Under the definition of “residence document” contained in the EEA Regulations in force in February 2004 (the Immigration (European Economic Area) Regulations 2000) such a document constitutes “proof of the holder’s right of residence in the United Kingdom” (regulation 2). However, that mistake at best extends the period about which there was evidence of Mr Salama exercising Treaty rights from February 2004 to April 2006 and that is still well short of the requisite five years. We can appreciate that Mr Salama’s leaving the matrimonial home in 2006/2007 may have made it more difficult than otherwise for the appellants to obtain evidence of his employment history. However, the appellants failed to produce credible evidence of having taken reasonable steps to obtain further and better particulars of Mr Salama’s work history and they did not request the FTT to make an interlocutory order (under Rule 50 of the Asylum and Immigration Tribunal (Procedure) Rules 2005). The burden of proving Mr Salama had been exercising Treaty rights for the requisite period rested on them: see Amos v Secretary of State for the Home Department [2011] EWCA Civ 552. Hence the appellants had not been able to prove that Mr Salama was exercising Treaty rights except between (at best) February 2004 - April 2006. There was accordingly no material error of law on the part of the FTT in finding that the appellants failed to show they were entitled to permanent residence documentation on the basis of Mr Salama’s exercise of Treaty rights. The further evidence submitted by the appellants fails to add in any significant way to the state of the evidence regarding Mr Salama’s employment history. Accordingly they are not able to show either (a) that the Union citizen/EEA national ever exercised Treaty rights for a continuous period of five years prior to the termination of the marriage; or (b) that he was exercising Treaty rights at the date of termination of the marriage in February 2010 (the latter being a prior condition for the appellants to have acquired a retained right of residence). As to (a), it is true that the first appellant was granted residence documentation for five years between February 2004 and February 2009 (the second appellant between 6 August 2005 and 17 February 2009), but such residence documentation does not prove the continuation of the underlying right of residence for the period of validity of the document: see Dias (European citizenship) [2011] EUECJ Case C-325/09 (21 July 2011); and Samsam (EEA: revocation and retained rights) Syria [2011] UKUT 165 (IAC); [2011] Imm AR 663.

In reaching our conclusions on (1), we have taken careful account of the further submissions made by the appellants’ new solicitors (Seraphus Solicitors) dated 20 September 2011 in which they urged us to reconvene so as to hear further argument as to whether the burden of proof in order to show Mr Salama had been working for a longer period than identified above rested on the appellants and whether Article 13 of the Directive did require an applicant to show that the ex-spouse was exercising Treaty rights at the time of the termination of the marriage. On both these issues we consider that we are bound by the judgment of the Court of Appeal in Amos and we are confident that that judgment correctly interpreted the Directive.

Before turning to the second issue as such, we should mention that both the 2006 EEA Regulations and the Citizens Directive contain provisions designed to cover similar but not identical ground to Article 12 of Regulation No. 1612/68: see Advocate-General Opinion in Ibrahim (European Citizenship) [2009] EUECJ Case C-310/08, para 31. However those provisions, as set out in regulation 10(3) of the 2006 Regulations and Article 12(3) of the Citizens Directive, confer a retained right of residence only in respect of family members in the event of death or departure from the host Member State of the Union citizen. Neither of these events arises on the facts of this case. If, however, they had then it might have been possible for the appellants to show that they qualified for permanent residence on the basis that the second appellant had been attending an educational course which he had not yet completed.

Thus (subject to the matter we raise below at paras 41-46) the appellants are not able to establish any rights of residence under the 2006 Regulation or the Citizens Directive.

This leaves the second and third issues, both of which revolve around Article 12 of Regulation No. 1612/68. In relation to the scope and meaning of this provision we are much assisted by the recent judgments of the Court of Justice in Ibrahim and Case C-480/08Teixeira [2010] Imm AR 487, both of which in turn build on previous case law, Case C-7/94 Gaal; Joined Cases C-389/87 and 390/87 Echternach and Moritz[1989] ECR 723; and Case C-413/99 Baumbast and R [2002] ECR I-7091.

In relation to (2), the second issue, we consider that the FTT may nevertheless have erred in law in failing to address whether the first and second appellants were entitled to an EU right of residence under Article 12 of Regulation No. 1612/68 (the second appellant on the basis that he was still in full-time education; the first appellant on the basis that she was the primary carer of the second appellant). Albeit the appellants’ representatives did not raise Article 12 of Regulation No. 1612/68 in their grounds of appeal to the FTT or at the hearing, it was raised in the application for permission to appeal and its potential relevance to the EU rights of both appellants was a point, given the state of the evidence before it, that it was obliged to consider, even of its own motion. If we eventually decide that one or both appellants can derive rights from Article 12 (see below), then this would suffice for us to find a material error of law and set aside the decision of the FTT, preserving all of its findings of fact, subject only to a correction in respect of the exercise of Mr Salama’s exercise of Treaty rights between February 2004 and April 2004.

On the issue of whether the second appellant qualifies for an EU right of residence on the basis of Article 12, Mr Kyriacou, for the respondent, accepted, with one caveat, that if the second appellant fell within the meaning of the term “children” in Article 12 then he had an EU right of residence for as long as he remained in full-time education. Mr Kyriacou’s caveat was that the second appellant’s enjoyment of an Article 12 right “may” have been affected by his parents’ divorce in February 2010. Ms Bassiri-Dezfouli argued that there could be no such caveat. We agree with her and indeed it seems to us that in argument Mr Kyriacou himself identified why this is so when he referred us to observation by the Court of Justice in Baumbast and R at para 63:

“In the light of the foregoing, the answer to the first question must be that children of a citizen of the European Union who have installed themselves in a member State during the exercise by their parent of rights of residence as a migrant worker in the Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No. 1612/68. The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard” (emphasis added).

The only unresolved matter, therefore, relating to the application of Article 12 to the second appellant concerns whether he is a child. As already noted, he is not the natural child of Mr Salama but a stepchild. The text of Article 12 does not contain a definition of the term “children”, although Article 10 of the same Regulation (1612/68) defines close family members of workers who are nationals of another Member State as follows:

“(a)

his spouse and their descendants who are under the age of 21 years or are dependants;

Ms Bassiri-Dezfouli submitted that there were two reasons why the term “children” in Article 12 should be read to include “stepchildren”. First, both under Article 10, Regulation No. 1612/68 and in the subsequent provisions dealing with close family members contained in Article 2(2) of the Citizens Directive, it is clear that those able to qualify in the descending line include the natural children of both a Union citizen/EEA national and his or her spouse. Logically the natural child of a spouse is the stepchild of his or her married partner. Second, she relied on the acceptance by the Court of Justice in the Baumbast and R case that Mr Baumbast’s stepchild came within the ambit of Article 12.

We see the force of Ms Bassiri-Dezfouli’s first point, although the Court has been at pains to point out that the scope of Article 12 of Regulation No. 1612/68 is not co-terminous with that of Article 10 of the same Regulation: see GaalC-7/94 [1995] ECR I-1031, paras 21-25. But the plain fact that both of the children of the spouse of Mr Baumbast, including the one who was a stepchild, were accepted as coming within the ambit of Article 12, puts the matter beyond doubt.

The fact that the second appellant is now over 21 is not in itself a reason why he cannot qualify as a child for Article 12 of Regulation No. 1612/68 purposes because the Court has held that the right is intended to obtain until the completion of full-time studies: see again Gaal, paras 24-25. Nor is it necessary that the child continues to be dependent on his parent(s): Gaal, para 25.

Hence we are satisfied that the second appellant qualifies as a child for the purposes of Article 12 of Regulation No. 1612/68. On the evidence before us he has held an EU right of residence since February 2005 (that being the first date on the evidence on which Mr Salama had employment). As he has been in full-time education ever since, and is about to commence full-time PhD studies in Edinburgh, he continues to benefit from this right.

This brings us to the first appellant’s status in respect of Article 12. Ms Bassiri-Dezfouli submits that she qualifies for an Article 12 right of residence derived from that of the second appellant as his primary carer. Mr Kyriacou maintains that she does not because the evidence does not establish that the ongoing support she provides to the appellant, now aged 25, can properly be described as “care”.

On the accepted facts, it seems to us that in assessing whether the first appellant is the second appellant’s primary carer there are considerations pointing in opposite directions. On the one hand, it is clear from the decided cases on Article 12 of Regulation No. 1612/68 that so long as full-time education is not completed an applicant can still come within its scope even if over 21. And up to the present the second appellant has been both a dependant on his mother and a member of her household. Albeit he has had some part-time employment, his mother has been providing him with material support for his essential needs and this will continue even when he goes to study at Edinburgh University. Article 12 of Regulation No. 1612/68 refers to Member states encouraging “all efforts to enable such children to attend these courses under the best possible conditions”. His father has no role in his life and she is the one who had continuous custody until he became an adult. If the first appellant is still the second appellant’s carer, there is no issue, therefore, that it is she and she alone who is his primary carer. The evidence of both appellants was also that the two have a close relationship. Doubtless that reflects the fact that she is supporting the family, consisting of the second appellant and her two other sons, and the second appellant is the oldest child. It is also of possible relevance that the European Court of Human Rights has held that in certain circumstances “family life” as well as “private life” within the meaning of Article 8 of the European Convention on Human Rights can be said to exist between a parent and an adult child who is still involved in education: see most recently AA v United Kingdom (Application no. 8000/08) [2011] ECHR 1345 (20 September 2011). It must also be borne in mind that it is the constant case law of the Court of Justice that rights of residence afforded by EU legislation are to be given a broad interpretation.

On the other hand, the appellant is now 25 and is due to begin studies in another city, at Edinburgh University in September. Although it is said to be “possible” at some time in the future that the first appellant and the other two boys will relocate to Edinburgh, it is put no higher than that and the second appellant has made concrete plans to live in accommodation provided by an academic in Edinburgh who is a friend of the family. Albeit still financially dependent on his mother the second appellant is now an adult who has entered the labour market at least for the purposes of doing part-time work. Even given that the first appellant will continue to support the second appellant financially and no doubt the second appellant will return to his family home during term holidays, it is unclear that such ongoing support as she provides can be described as her being present in his life as a carer. Arguably the concept of care imports a degree of close physical and emotional support. The second appellant is healthy and able-bodied. The fact that a child student has reached adulthood and is indeed over 21 does not in itself render it impossible for him to have a primary carer, but equally it would seem incongruous if the notion could encompass even a parent with whom an adult child will not be living as soon as the last lap of his full-times studies begins in September 2011.

In Teixeira the Court stated at para 87 that:

“the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.”(emphasis added)

Surveying the competing arguments we consider that we cannot with complete confidence interpret the meaning of the term “primary carer”. That term is not to be found in any EU legislation, but it is the term employed by the Court of Justice when developing the derived right of residence in relation to parents of children in full-time studies.

A further dimension of difficulty is that the terms used by the Court have varied. In Baumbast and R at paragraph 73 the Court held that:

“The right conferred by Article 12 of Regulation No 1612/68 on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies. To refuse to grant permission to remain to a parent who is the primary carer of the child exercising his right to pursue his studies in the host Member State infringes that right.” (emphasis added)

In Teixeira the Court stated at para 87 that:

“the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.”(emphasis added)

The fact that different terms are used in these two passages – residence and presence – adds to the difficulties we have when seeking to construe their implications for the issue of in what circumstances a parent is to be seen as a primary carer. Those difficulties are not lessened by the knowledge that in other areas of EU law –e.g. social security rights of migrant workers, rights of custody of children cases – the terms “habitual residence”, “residence” and “presence” are interpreted in ways specific to their context in the relevant EU legislation: see e.g. Stewart (Social security for migrant workers) [2011] EUECJ Case C-503/09; Mecredi (Area of Freedom, Security and Justice) [2010] EUECJ Case C-497/10. There are no ready answers to questions such as: “Does residence/presence mean physical presence of something else and if so, what else?”

We are conscious of the test for making a reference as set out in R v Stock Exchange ex parte Else [1993] QB 534, namely whether we are able with complete confidence to decide the matter ourselves. We have also had regard to the guidance given by a panel chaired by the President of the Upper Tribunal in MR and ors (EEA - extended family members) Bangladesh [2010] UKUT 449 (IAC).

In deciding whether to make such a reference we have also benefited from the Information Note on references from national courts for a preliminary ruling  (OJ 2009/C-297/01,  5 December 2009). We note in this regard that in this case: the facts are not in dispute; the EU law issues are likely to be determinative of the outcome of these appeals; the appeals have been pending for some time and if a reference needs to be made the sooner it is made the better; prior to the hearing of this case the parties were asked to consider the issue of whether to make a reference and in response to a draft decision we sent to the parties subsequently setting out our proposed reference and the questions we would ask, both parties confirmed that they did not oppose the proposed reference and had no comments to make on the proposed questions. In response to a request from us the AIRE Centre, whom we have accepted as a third party intervener, also confirmed that it had no comments to make on our proposed questions.

Accordingly we consider that we should make a reference aimed primarily at obtaining clarification as to the scope and meaning of the term “primary carer” in the context of the right to access to education conferred by Article 12 of Regulation No. 1612/68.

There is a further difficult issue of interpretation – this is the “fourth issue” we foreshadowed earlier at para 19. It arises as a result of our earlier finding that the second appellant qualifies as a child for the purposes of Article 12 of Regulation No. 1612/68 and that on the evidence before us he has held an EU right of residence since February 2005 (that being the first date on the evidence on which his Union citizen father, Mr Salama, had employment). As he has been in full-time education ever since, and is about to commence full-time PhD studies at Edinburgh University, he continues to benefit from this right: see above para 26. The difficulty arises in relation to the question of whether he thereby possesses a permanent right of residence under the Citizens Directive and so must be issued with a permanent residence card on the basis that he has held an EU right of residence now for over five years continuously.

On one interpretation, his EU right of residence is not one that is within the scope of the Citizens Directive (reading the reference to "resided legally" in Article 16 of this Directive as meaning in accordance with the conditions laid down in the Directive) and hence he cannot qualify for a right of permanent residence under that Directive and his appeal cannot succeed on that basis. That is the approach taken by the Court of Appeal in Okafor & Ors v Secretary of State for the Home Department [2011] EWCA Civ 449, 20 April 2011: see e.g. paras 31-33. At para 20 the Court of Appeal considered that whereas Article 12(1) and Article 12(2) of the Citizens Directive provide for a route for certain family members to acquire a right of permanent residence, the scope of Article 12(3) (which provides for the right of residence of a Union citizen’s children or of the parent who has actual custody of the child not to cease in the event of the Union citizen’s departure from the host Member State or his/her death if the children reside in the host Member State and are in education) is limited to acquisition of a right of residence.

An alternative interpretation would be to treat the fact that the second appellant has held legal residence under EU law as sufficient to qualify him under Articles 16 and 17. Just as the Court in Lassal (European citizenship) Case C-162/09; [2011] Imm AR 134 (7 October 2010) (paras 40, 59) and most recently (and post-Okafor & Ors) on 23 July 2011 in Dias (para 43) has ruled that legal residence under predecessor EU legislation can qualify for the purposes of acquiring permanent residence under the Directive, so it might be thought that the Court would regard legal residence under co-existing EU legislation as also qualifying a person for permanent residence under the Directive. It might be considered that further support for the alternative interpretation is to be found in the principle of equal treatment as enshrined in both the Directive and primary EU law. The question can be raised, is it consistent with either the principle of equal treatment or with Article 21 of the Treaty on the Functioning of the European Union (TFEU) for such a person to be denied the same rights as are enjoyed by a beneficiary of a right of permanent residence under the Citizens Directive when in each case there has been a continuous period of five years in which the person concerned has held an EU right of residence?

If the alternative interpretation is adopted it would have consequences for the exercise of jurisdiction of the Upper Tribunal, which (in common with that of the FTT) is to decide whether the decision appealed against by the second appellant (and first appellant) – refusal to issue a permanent residence card – “breaches the appellant’s rights under the [EU] Treaties in respect of entry to or residence in the United Kingdom” (s. 84(1)(d) of the Nationality, Immigration and Asylum Act 2002).

The Upper Tribunal would have to decide whether, in order to ensure that the second appellant’s rights under the EU Treaties are not breached, it is necessary not only for it to set aside the determination of the FTT for legal error and remake the decision by allowing his appeal, but also to declare that the second appellant has acquired a right of permanent residence and is entitled to a permanent residence card (or at least to declare that his position should be assimilated to that of a person who is so entitled). Were we to decide that the first appellant had a derived right of residence from the second appellant, similar considerations would arise in her case.

In our view this further difficult matter of interpretation is also one which we cannot with complete confidence decide for ourselves. We are not aware of any post-Dias tribunal or higher court authority, either in the United Kingdom or in any other Member State, that helps us resolve the difficulties identified above. The main questions arising in Case C-424/10 Ziolkowski and others (the appellant’s representatives made reference to the recent Advocate General opinion in this case in their 20 September 2011 submission) appears to relate to the relevance of residence acquired under national law.

The decision in this case is that we are unable to decide whether the FTT materially erred in law or to proceed any further without guidance from the Court of Justice. In the nature of the preliminary reference procedure, our further deliberation of this case must therefore be adjourned to await a ruling from the Court of Justice.

In light of the above our order for reference to the Court of Justice is as follows:

The facts: see above paras 7-9.

Relevant law: see above paras 10-18.

Relevant submissions: see above paras 26-28, 32.

The questions: see Schedule below.

For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?

If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence) and being issued with a residence card under Article 19 of the same Directive?