United Kingdom Asylum and Immigration Tribunal

 


LB and MB (dependants of absent Community nationals) Colombia [2006] UKAIT 00015

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 23 January 2006

Date Determination notified: 09 February 2006

Before
MR G WARR (SENIOR IMMIGRATION JUDGE) MR P CHALKLEY (SENIOR IMMIGRATION JUDGE)
Between

LB and MB	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr R P Scannell, Counsel, instructed by JCWI For the Respondent: Mr N Sheildon, Treasury Solicitor
DETERMINATION AND REASONS

Where a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 leaves the United Kingdom, Article 6(2B)(b) does not confer a right to remain on all his dependants. Only the children or descendants of the qualified person can remain in this country for the purposes of pursuing an educational course. The reference to "dependants" does not introduce a wider class of persons who have such a right.

1. The appellants are citizens of Colombia born on 2 September 1986 and 4 January 1984 respectively. They are brother and sister. In August 1996, the appellants' elder sister travelled to the United Kingdom as a visitor. She met a Swedish national living and working in the United Kingdom. They married in December 1996 and set up home together with the appellants' sister's two children by a previous marriage. At that time, the appellants' sister's Swedish husband held a quasi-diplomatic status because of his employment by an international institution and the appellants' sister was granted immigration status describing her as exempt. In early 1997, another of the appellants' sisters travelled to the United Kingdom to study. She lived with the appellants' sister and her Swedish husband as a dependent member of their household. In 1999, the appellants' mother travelled to London to visit the appellants' sister and also lived with them as a dependent member of their household. In the household were also two children by the appellants' sister's first marriage, and two other children born to the appellants' sister and her Swedish husband. EEA residence permits were eventually issued to the family on 24 May 2001, valid until 28 March 2005. The appellants arrived in the United Kingdom on 4 April 2001. After they arrived, their sister arranged for them to be issued with EEA residence documents, also valid until 28 March 2005. The appellants' father arrived in the United Kingdom in May 2001. Shortly after their arrival in the United Kingdom, arrangements were made for the appellants to learn English. The first appellant took GCSE examinations in June 2002. He then enrolled at Barnet College where he is still pursuing studies at "A" level. He is due to sit his "A" level examination in June 2006. The second appellant enrolled upon a course of training as a fitness instructor at Barnet College. In September 2002 she enrolled upon another course of studies at Barnet College pursuing an NVQ in administration. She then undertook further training as a legal secretary, which she completed in June 2004. She is now a law student at the University of Surrey. Towards the end of 2002, the appellants' sister's Swedish husband was offered employment in Washington DC. In December 2002, he, the appellants' sisters, together with the four children, travelled to the USA. They hope to return to the United Kingdom in due course. The appellants went to live with their parents in the United Kingdom, where they remain. In anticipation of the expiration of their EEA residence documents, the appellants' representative made an application on their behalf on 21 March 2005 for their renewal.
2. The appellants' application was refused by the Secretary of State as the sponsor was living abroad and was therefore not a qualified person as set out in Regulation 5 of the Immigration (European Economic Area) Regulations 2000. The decision under appeal was taken on 23 May 2005. Accordingly, the requested residence documents confirming the right of residence of the appellants in the United Kingdom as the dependants of an EEA national were refused.
3. The Immigration Judge referred to the Regulations and the case law which had been cited to him including Baumbast (C-413/99) [2003] INLR 1 and concluded that the appellants had derived an indefinite right of residence in the United Kingdom by virtue of Article 12 of EC Regulation 1612/68. They were dependent family members when they entered into education and in the light of the principles to be derived from Community law jurisprudence he was satisfied:

'... that no sensible distinction can be drawn as regards the content of the rights enjoyed by children who are family members of a worker. In short, once Community law defines a child as a family member of a worker it matters not whether such a person is defined in that way through Article 10.1 or 10.2 of EC Regulation 1612/68.'

4. Accordingly the rights acquired by the appellant survived the sponsor's departure from the United Kingdom. In the grounds contending that the Immigration Judge made a material error of law, it is contended that Regulation 6(2B)(b) in referring to 'descendants of his or of his spouse who are under twenty-one or are their dependants, provided that they were attending an educational course in the United Kingdom when the qualified person was resided in the United Kingdom and are continuing to attend such a course' did not cover the appellants since they were not 'descendants of his or of his spouse'.
5. Before us Mr Sheildon relied on his skeleton argument. The Secretary of State summarised the arguments advanced on behalf of the appellants in paragraph 12 of the skeleton argument. It was said that the appellants sought to persuade the Tribunal that the rights conferred by Article 12 of Regulation 1612/68 and Regulation 6(2B) of the 2000 Regulations extended beyond children of the national of a member state or his spouse. It was said that the effect of the words 'their dependants' in Regulation 6(2B)(b) was to extend the scope of that regulation to anyone who could properly be described as a dependant of a qualified person whether or not that person is his or her descendant. Following the case of Baumbast, the right to continue in education following the departure of the qualified person could not 'depend on how the child qualified as a family member'. In response to these representations Mr Sheildon submitted in his skeleton argument that the meaning of Regulation 6(2B)(b) was clear on its face and the words 'their dependants' referred back to 'descendants'. They had the effect of extending the scope of the regulation to descendants who were over the age of twenty-one but who remained dependent on their parents. Article 12 of Regulation 1612/68 and paragraph 57 of Baumbast made the matter clear. As it was accepted on behalf of the appellants that they were not the children or descendants of the qualified person (for the purpose of the 2000 Regulations) and/or the national of a member state (for the purposes of Regulation 1612/68) it followed that they fell outside the scope of those provisions.
6. A number of consequences of the acceptance of Mr Scannell's interpretation were sketched out in paragraphs 20FF of the skeleton argument.
7. It was submitted that there was nothing in the Baumbast judgment to support the argument advanced by Mr Scannell. The matter was clear both under municipal law and the EC Regulations. There was no scope for any reference to the ECJ. It was of note that Directive 2004/38/EC which repealed Article 12 and which was due to come into force on 1 May 2006 provided as follows:

'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'.

8. It was submitted that the Immigration Judge had made a material error of law in determining that the appellants have 'derived an independent right to residence in the United Kingdom from Article 12 of EC Regulation 1612/68'.
9. Mr Scannell, relying on his skeleton argument, reminded the Tribunal that it should consider the case from the perspective of Community law. One should seek the best possible integration of the family members of a person exercising Treaty rights – see, for example, paragraph 50 of Baumbast. In the cases of Echternach and Moritz (389/87 and 390/87) [1989] ECR 723 the following argument was upheld:

'that the principle of equal treatment enshrined in Community law must ensure as complete an integration as possible of workers and members of their families in the host country and that therefore an interruption in a family members residence in that country must not prevent him from continuing his studies there.'

Reliance was also placed on Carmina di Leo (C-308/89) [1990] ECR I-4185 in particular at paragraph 13:

"It must also be borne in mind that the aim of Regulation 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker's family in the society of the host country. If such integration is to be successful, it is essential for the child of a Community worker who resides with his family in the host Member State to have the opportunity to choose a course under the same conditions as a child of a national of that state."

10. While the appellants were not the children of the worker on whom they relied in order to obtain their right of residence under Article 10 of Regulation 1612/68 they were dependent family members when they entered education and (so it was submitted in the skeleton argument) 'it is highly unlikely – having regard inter alia to the principle vouched saved by Regulation 1612/68 which requires 'the best possible conditions for the integration of the Community workers family in the society of the host member state' (paragraph 50 Baumbast refers) – that any distinction can sensibly be drawn as regards the content of the rights enjoyed by children who are family members of a worker.'
11. Community law defined child as a family member of a worker and it mattered not whether such a person was so defined through Article 10.1 or 10.2 of Regulation 1612/68. No objective justification could be made for distinguishing between the Article 12 rights of children admitted as descendants and those admitted as dependants. If the Community worker's spouse had remained in the United Kingdom with her own Colombian children, and as the carer of the appellants, she and her children would have been allowed to remain but her brother and sister would have been refused. It was submitted that the EEA Regulations did not properly incorporate all the categories referred to in Article 10.1 and 10.2 of Regulation 1612/68. Unless the point could be determined with complete confidence, it should be referred to the ECJ. It was not an academic matter since it was an obstacle preventing or inhibiting the free movement of Community workers.
12. In reply, it was submitted that the submissions advanced on behalf of the appellants went counter to the regulations relied upon. All the case law referred to related to the children of Community nationals. Article 12 was only concerned with the children of workers who wished to remain after the departure of the worker in order to complete their education. There was nothing surprising that children should be treated in a different position from those who were not the children of the worker. The line had to be drawn somewhere.
13. If the position were as contended by the appellants, the EU national could bring in an indefinite number of children of the extended family who might live in the United Kingdom for very short periods and they would all have the right to come and complete their education. There was nothing anomalous or unfair in restricting the application of the provision to the children of workers. It was submitted that Article 10 of Regulation 1612/68 was a red herring. Regulation 6(2B) of the 2000 Regulations was concerned with implementing Article 12 and not Article 10 of Regulation 1612/68. On Mr Scannell's argument, there was a very wide class of persons with an entitlement, not limited to children of family members. The Immigration Judge had failed to explain on what basis he had rejected the plain meaning of Article 12 and Regulation 6(2B).
14. At the conclusion of the submissions we reserved our determination. We are grateful to counsel for their respective skeleton arguments. The facts are not in dispute and we have referred to them above. The narrow question is the meaning of the Regulations and whether they faithfully implement the provisions of Community law.
15. Regulation 6 of the EEA Regulations sets out who are to be regarded as the family members of another person in various different circumstances. Where the person is a student, for example, the persons are his spouse and dependent children – see 6(2) of the Regulations. The relevant paragraphs for our purposes is 6(2B):

'If the other person has ceased to be a qualified person on ceasing to reside in the United Kingdom, the persons are –

(a) his spouse or his divorced spouse, provided she is the primary carer of their dependent child who is under nineteen and attending an educational course in the United Kingdom; and

(b) descendants of his or of his spouse who are under twenty-one, or are their dependants, provided that they were attending an educational course in the United Kingdom when the qualified person was residing in the United Kingdom and are continuing to attend such a course.'

Under 6(2D) it is provided that a person to whom paragraph 2(B) applies 'shall be treated as the family member of a qualified person, notwithstanding that the other person has ceased to be a qualified person.'

16. Reliance is placed on Article 12 of Regulation 1612/68. This refers to 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 territories. Member states shall encourage all efforts to enable such children to attend these courses under the best possible conditions.'

17. Mr Scannell points out that Regulation 1612/68 requires 'the best possible conditions for the integration of the Community worker's family in the society of the host member state'. Once Community law defines a child as a family member of a worker it matter not whether such a person was so defined through Article 10.1 or 10.2 of Regulation 1612/68.
18. We find that the provisions relied upon are perfectly clear in their intention and effect. The appellants are not 'descendants of his or of his spouse ...' under Regulation 6(2B)(b). The words 'or are their dependants' does not make the class wider – it simply refers to descendants who are not under twenty-one. We consider that the meaning of Regulation 6(2B)(b) is clear on its face. There is nothing inconsistent with that interpretation in the Baumbast judgment and indeed that judgment refers at paragraph 57 (see [2003] INLR 46) to the phrase 'descendants who are under the age of twenty-one years or are dependants' in Article 10 of Regulation 1612/68:

'Furthermore, the right of "his spouse and their descendants who are under the age of twenty-one years or are 'dependants' to install themselves with the migrant worker must be interpreted as meaning that it is granted both to the descendants of that worker and to those of his spouse'.

As is pointed out by Mr Sheildon, in order to be consistent with the appellants' interpretation, it would be necessary to add the words 'or any of their dependants' to the end of this sentence.

19. In his skeleton argument Mr Sheildon identified a number of other difficulties with the appellants' construction of the Regulations. It is pointed out, for example, that if the appellants' interpretation were correct then an EEA national who might only be working in the United Kingdom for a short period, could arrange for an indefinite number of individuals to come to the United Kingdom as his dependants, all of whom would be entitled to remain in the United Kingdom after he had left for as long as they continued to engage in education.
20. The effect and purpose of the words 'or are their dependants' was clear, it was submitted. They extended the right of children who remained dependent upon their parents after the age of twenty-one to remain in the United Kingdom to complete their education. This would protect children who had embarked on a four year degree course while their parents were working in the United Kingdom. They would have had to leave when they turned twenty-one if provision was not made for them.
21. It was further pointed out that if the rights conferred by Regulation 6 applied to all dependants, whether they were descendants of the qualified person or not, then the words 'descendants of his or of his spouse who are under twenty-one' would be rendered entirely otiose. There was a further anomaly in that descendants of the qualified person would be treated less favourably than 'dependants' of the qualified person since the rights of descendants would be extinguished when they reached the age of twenty-one where the rights of dependants were apparently open ended.
22. We find, as we have said, Regulation 6 to be clear on its face. The appellants are not descendants of the qualified person or of his spouse. The appellants are not dependants within the meaning of Regulation 6(2B)(b). The Regulation can only sensibly be construed in the manner contended for by Mr Sheildon. Bearing in mind the guidance given by the Master of the Rolls in R v. International Stock Exchange ex parte Else [1993] QB 534 at 545 we see no basis to refer the issue resolving it as we do with no real doubt and with complete confidence.
23. We see nothing anomalous or unfair in so construing the Regulation. As Mr Sheildon submits, a line has to be drawn somewhere. We see nothing in the regulations contrary to the intention of Regulation 1612/68. The authorities relied upon by the Immigration Judge and by Mr Scannell before us refer to the children of nationals of a member state. The Immigration Judge acknowledges in paragraph 40 of the determination that the appellants are not the children of the worker on whom they relied in order to first secure their right of residence under Article 10 of E Regulation 1612/68. We see no basis for the Immigration Judge's decision that their rights survived the cessation of employment of their sponsor and his seeking to reside in the United Kingdom. It is not possible to distil a principle of Community law to assist the appellants from the materials relied on by Mr Scannell and indeed the authorities compellingly support the arguments advanced by Mr Shieldon.
24. We were also referred to Directive 2004/38/EC which comes into force on 1 May 2006. in Article 12(3) it states :

'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.'

As Mr Sheildon submits, it has been expressly decided to reject the extension of the scope of Article 12 in the manner advanced on behalf of the appellants.

25. We find that the Immigration Judge made a material error of law. He had no basis for concluding that the right conferred by Article 12 extended beyond children of nationals of member states. None of the arguments advanced on behalf of the appellants persuades us that the Immigration Judge came to the right conclusion.
26. The Immigration Judge made a material error of law. We accordingly substitute a fresh decision.
27. The appeals of the appellants are dismissed.

Signed Date

G. Warr

Senior Immigration Judge