ON APPEAL FROM THE UPPER TRIBUNAL
Senior Immigration Judge Freeman
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE THOMAS
LORD JUSTICE ETHERTON
| Franklin M C Okafor & Ors
|- and -
|Secretary of State for the Home Department
Mr David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing date: 17 January 2010
Crown Copyright ©
Lord Justice Thomas:
The nationality of the appellants and their initial right to residence in the UK
"1. All Union citizens shall have the right of residence on the territory of another Member State for a period longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, 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; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)."
"2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c)."
Their position after the death of the mother
"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)."
Again there was no dispute that the children did not meet any of the qualifying conditions of Article 7(1).
"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 defined as in Article 8(4).
Such family members shall retain their right of residence exclusively on a personal basis."
There was some argument as to whether the father could satisfy the condition in respect of resources to which I return at paragraph 17.
"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."
The application for permanent residence
"1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years."
This Article had been transposed by Regulation 15 of the UK Regulations. Regulation 15(1) (a) and (b) of those Regulations provide as follows:
"(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."
"(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 two years immediately before his death or the death was the result of an accident at work or occupational disease."
Was there a right under Article 12?
Could a right be obtained under Article 16?
i) The stamp in their passport which was equivalent to a residence card granting under Article 11 a right of residence for five years.
ii) The right, under Article 12(3) of the Directive, and the rights made clear under Article 12 of Regulation 1612/68, as confirmed by the decision of the European Court of Justice in Teixeira.
It did not matter that part of the period of five years was prior to the entry into force of the Regulation 2004/38/EC; this was accepted by the Secretary of State in the light of the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Lassal (Case C-162/09).
(i) The submission on legal residence under EU law
(ii) The contentions made on the acquisition of the right to legal residence under Articles 11 and 12(3)
"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 in 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."
"Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure."
(iv) Conclusion on rights under EU law
"The stark submission appears to be that any person who succeeds in remaining in the United Kingdom for 5 years acquires a right of permanent residence whether their intervening residence was legal or not. Legality, it is said, is derived from the fact that the state has not taken steps to remove the person even though the residence did not meet the conditions of Article 7 of the Directive. So long as the state takes no steps to remove, the residence is to be regarded as lawful. Mr De Mello submits that, once there has been 5 years continuous residence, the only limitation is that in Article 16.3 of the Directive (which does not apply in Océane's case). Asked by the Court for the legal principle on which his submission rested, Mr De Mello struggled to answer. He was not promoting a kind of prescription, but was promoting a variety of waiver. "
The President at paragraph 18 set out his view on the clear meaning of "legally" in Article 16:
"It is, in our view, plain that residing "legally" in Article 16 of the Directive means "in compliance with the conditions laid down in this Directive". This was the view of Pill LJ in paragraph 31 of his judgment in McCarthy v Secretary of State for Home Department  EWCA Civ 641, where he said that the Directive creates and regulates rights of movement and residence for Union citizens. The lawful residence contemplated by Article 16 of the Directive is residence which complies with Community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality. The expression "resided legally" in Article 16 should be read consistently with, and in the sense of, recital 17 of the Directive, that is residence "in compliance with the conditions laid down in this Directive". We respectfully agree with this. The focus is on community law and lawful residence under domestic law would not by itself amount to residing "legally" under Community law. In the present case, domestic law and Community law are materially to the same substantial effect. In our judgment, a failure to enforce Océane's removal after 3 months did not graduate by waiver to her acquiring a permanent right to residence after 2 years or 5 years or any other period. She remained upon tolerance subject to immigration control with no right to remain."
"The right of residence of the surviving family members who are not nationals of a Member State is subject to their being engaged in gainful activity or having resources or being a member of a family, already constituted in the host Member State, of a person satisfying these conditions, until they acquire the right of permanent residence. Unlike the case of Union citizens, a simple bona fide declaration would not be sufficient; the persons concerned will have to prove they satisfy the conditions."
(v) Lawful residence under national law
"The referring court's second question would therefore have to be answered as follows:
Legality of residence, which under Article 16(1) of Directive 2004/38 is a precondition for acquisition of a right of permanent residence, can result from EU law or from the host Member State's domestic law on foreign nationals."
In my view, the opinion does not assist Mr De Mello's argument in this case that the right under Article 12(3) or the rights derived from the residence permit under Article 11 give rise to a right of permanent residence under Article 16.
"That residence document, once issued, was valid for at least 5 years unless revoked by the Secretary of State. It had not been revoked nor, in the current state of knowledge of the claimant and the Secretary of State, could it be revoked. The current whereabouts and status as a worker of Mr Barroso is unknown and therefore there is no basis for saying that he is not, or has ceased to be, a qualified person. In those circumstances the Secretary of State, rightly in my judgment, concedes that in common parlance the claimant was until 7 October 2004 a person who was "in lawful residence"."
Mr De Mello contended that the concession was rightly made by the Secretary of State; it showed that if a residence document was not revoked it gave rise to a right of residence under national law. It is not necessary to decide whether the effect of the concession was right, as the Secretary of State could not show that Mr Barosso had ceased to be qualified. In this case, the person on whom the rights of residence depended had died and the position of the Secretary of State was quite different. If the concession in that case was to the effect that, if the Secretary of State had not revoked a residence document, even though he was entitled to do so, it gave rise to a right of lawful residence under UK law, then that was not a concession that was rightly made. It is clear that if a person no longer has a right to reside in the UK, the fact that the Secretary of State has not cancelled the document which initially granted that right cannot establish a right of lawful residence under national law: see for example the passage I have cited above from the decision in Lekpo-Bozua.
Lord Justice Etherton:
Lord Justice Maurice Kay: